Don't Let Your Client Be Miss USA
I’ve heard plaintiffs’ depositions in injury cases described as “beauty contests.” This is because the deposition of the plaintiff in an injury case is often the defense attorney’s first chance to actually lay eyes on the plaintiff. This is essential to properly evaluating the plaintiff’s likelihood of success at trial because the plaintiff’s appearance, manner of speaking, command of details, and likeability all have an impact on the jury. This is particularly true with respect to pain and suffering damages. The jury is unlikely to make a large damages award to a plaintiff that doesn’t appear likable or believable.
The title of this post, which may be me trying to be too cute, is a reference to the last two pageant winners to hold the title Miss USA. Both of these young ladies had the misfortune of making the Miss Universe pageant, only to trip and fall during the evening gown portion of the event. I am sure both of these ladies are hardworking, intelligent and generally graceful. Unfortunately for them (neither became Miss Universe) it is very difficult to overcome a negative impression.
The same holds true for the plaintiff’s deposition. Careful preparation can keep your client from falling on her face at deposition. As a group, injury lawyers are prone to forgetting that the average person has no idea how the litigation process works.
First, I always make sure that the client has a firm understanding of the purpose of the deposition, and the likely topic areas. Normally, the deposition has three parts, which I like to call Background, Facts and Medical/Damages. I explain the kinds of information that is usually included in each part.
Second, if there are facts crucial to the litigation, I make sure the client is aware of these areas. I hand out homework. The client should get a copy of her Answers to Interrogatories, medical records and bills, and any other important documents. This way the client knows the contents of any prior statements made in discovery or contained within the medical records. I also make sure the client gets to read the defense medical examiner’s report, if there is one.
Third, I explain the expected attire. So far I have not had anyone be offended by this- most people who are unfamiliar with the legal process are uncertain about what to wear. I make sure the client has the address of the location where the deposition will be held, and that they have my cell phone number in case of any last minute changes.
I think the attention paid to these issues helps clients make a better presentation at the deposition. It also sets a good foundation for getting the client ready to testify at trial.
