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How To Vet Your Client Before A Trial
BySindhuSundar
Law360, New York (March 9, 2016, 3:14 PM ET) --No attorney wants to discover midtrial that their own client may have undermined the case by withholding information or fudging crucial details, but it can happen to the best attorneys, as was the case in the firstGeneral Motorsignition switch bellwether trial that sank amid doubts about the plaintiff’s credibility.
The vetting process can be a delicate one. The attorney investigating his or her client must be dogged and thorough, but at the same time, must keep their client at ease and earn their trust.
Asking your client probing questions, requesting any social media communications they might have put out relating to their claims and pointing out inconsistencies in their arguments might be a challenging task. But taking a thoughtful and professional approach can vastly strengthen your case without compromising your relationship with the client, experts say.
"There's a tension — you want the client to have your confidence, and the client has got to relate to you," said Daniel Riesel ofSive Paget & Riesel PC. "So if you keep casting doubts about some of your clients' claims and theories, it may make them feel you're not in their corner."
"Nevertheless, you have to do it, because sometimes you will find the client has unrealistic views of the facts or views of the law that don't conform to what you believe the law is," he added.
Here, experts share tips on how to avoid unpleasant surprises when your client is on the witness stand.
Leave No Stone Unturned
Every important claim that your client intends to make to the jury should be supported by multiple forms of evidence, including deposition testimony, as well as written documents such as contracts, emails and even text messages that may be relevant to the claims, attorneys say.
Attorneys cannot risk taking their client’s account of specific incidents or events purely at face value and may even have to go so far as to conduct their own investigations to make sure that their clients’ version of events is supported by evidence. If an attorney fails to uncover details that could undermine the client’s allegations, it could end up becoming an entry point for the opposing side to discredit the client in front of a jury, experts say.
“What we do is, for every factual claim we're going to make, we make sure to get evidence in the form of testimony and documents because testimony alone is far less reliable than facts that are in writing,” said Howard King ofKing Holmes Paterno & Soriano LLP.
“And you need to get multiple items of proof for each important fact, so that by the time you go to trial, you know about all potential weaknesses in your case,” he added. “And if it's going to be mentioned in opening statements, it's truly a key fact, and it better be right.”
Hiring a private investigator to verify a client’s account of the events could be useful especially if the event in question took place years before the trial, or the client suffers from memory-related issues, King said. In a personal injury case, for instance, the goal of such an investigation would be to gather proof of any claim involving significant damages. It could also be useful to glean information such as whether your client has been in another lawsuit or even conduct a criminal background check, he said.
“It’s worthwhile to know the quality of the person you’re dealing with,” he said. “You can never ever rely on what your client tells you because people have selective and convenient memories, they rationalize a lot of things, and after a while, they even start to believe them.”
Spend Quality Time
Assessing a client’s arguments and damages claims takes more than just legal expertise, as it can sometimes be a nuanced exercise in social psychology. Attorneys seeking a critical view of the issues driving their client’s claims should spend time with them in person, paying attention to physical cues, including body language and tone, that may reveal important details about your client’s state of mind and the truth of what they may be telling you, attorneys say.
That’s not to say attorneys should work under the assumption that a client is lying until they can ascertain otherwise. Instead, it’s important to identify weaknesses in a client’s stories and ensure that they remember details of events that form the basis of their claims.
“I think quality face-to-face time, where you’re sitting down with a client and not just speaking to them on the phone, is very important,” said Tricia DeLeon ofGruber Elrod Johansen Hail Shank LLP. “There is no case with a perfect set of facts, but you don’t want to get into an uncomfortable situation during a trial. So your goal is to get the full truth, so you can decide in advance what to do to mitigate any bad or damaging facts.”
Along those lines, attorneys should also encourage their clients to disclose to them even details that they may consider unfavorable to their case so that they can devise a legal strategy accordingly. Keeping open lines of communication is also crucial to building trust, which is crucial to any attorney-client relationship, attorneys say.
“You can’t have a good fiduciary relationship if you don’t trust one another,” DeLeon said.
When speaking with corporate clients, it is important to meet with several people beyond the general counsel and even just those in the legal department, she said, as most of the relevant information may reside with the business-side employees who might offer important clues in conversations with you.
“You want to really pull out the good and the bad facts,” she said. “And often, it’s the business people who have more day-to-day control of the facts in a case. And if there’s some type of problem area, I want to hear this from my client and not my adversary.”
Devil in the Deposition Details
The period after the discovery is completed — a process that often unearths at least tens of thousands of documents — is a critical time to shore up your trial strategy and arguments and to do more thorough checks for any potential areas of weaknesses, attorneys say.
The purpose of this is not only to identify the themes you intend to elicit on direct examination and to get a sense for what the cross-examination might look like but also to look for contradictions in your client’s deposition testimony or in the documents they’ve submitted to the opposing side, according to Douglas Bohn of Cullen & Dykman.
It’s also important to determine whether your client may have sent emails or texts or posted updates onFacebookorTwitterthat may appear to be inconsistent with their deposition testimony.
“You want to make sure there's no email or text out there which is contrary to what their position is in the case,” Bohn said. “Maybe it was a mistake or offhand, flippant text, but when it's on a piece of paper two years later, it can seem different. Generally, minor inconsistencies aren't fatal, but if you've got a witness on the stand, and they are surprised, that's what you want to avoid.”
Inconsistencies could also come in the form of issues relating to testimony given in a prior case, a problem that you're more likely encounter when relying on expert witnesses who may have testified in multiple cases prior to yours.
In such cases, it is important to learn if the expert witnesses testifying for your client have ever taken an opposing stance in previous cases and to learn whether that witness has ever been restricted from testifying on the topics they plan to address in your client’s trial,according toBohn.
“I had a case once where an opposing counsel tended to argue that our witness had been barred as an expert in another case, but that wasn't exactly right — it was that the judge in that case had defined the parameters of what he could testify on, ” Bohn said, referring to a case on constitutional claims involving the Fair Housing Act. “The thing was that we prepared that so that if they were to bring this up, we knew how to address it. If we had not been aware, then [our expert witness] could have been caught off-guard.”
Conduct Mock Trials
One of the best ways to identify weaknesses in a client’s arguments is to subject them to intense cross-examination yourself in a mock-trial setting before the opposition takes the shot during the actual trial, attorneys say.
Such mock exams should shine the light on potential weaknesses in documents that have surfaced in discovery, according to Bohn, who said he practices mock-cross examinations with his clients for 15 minute to 40 minute sessions.
“You can’t just be prepping for direct, which is more a simple question-and-answer session where you and your client both know where you’re going with it," he said. “You also have to work with the witness and make sure they understand issues and themes they're gonna get, so really be aggressive with your witness.”
Mock trials are also a useful way to go over all the facts you’ve gleaned with the client to make sure that you are both on the same page and that they are satisfied with the legal theories you are pursuing based on those facts, attorneys say.
“Ultimately, you want to make sure client agrees with the facts you've assembled and make sure your view of the law is what the client is prepared to accept,” Riesel of Sive Paget & Riesel said.