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Imagine this scenario: Your client is about to be deposed in a case with significant damages at stake. Knowing what hangs in the balance, you spend hours preparing the client. This involves an extensive review of the likely areas of inquiry, followed by a mock deposition in which you ask the kind of questions, both in tone and content, that are likely to be asked at the actual deposition.
The client answers your questions concisely and clearly. You walk away from the meeting feeling confident that he will perform well when he has to answer questions for real the next day.
The client appears for his deposition and begins to answer the questions. His responses are not only rambling and inconsistent, but he also volunteers facts that severely damage the case. Even the extensive “pep talk” you give during the lunch break doesn’t improve the client’s poor performance.
You leave the deposition exasperated. As you drive back to your office, your mind is consumed by a single thought: “How that could happen, given all the time I put in to prepare him?”
In Boston, where I live, David Ortiz stands taller than just about any athlete who has ever put on the uniform of a local professional sports franchise. His 14-year career with the Red Sox is replete with moments in which he came through big in pressure situations. By his own admission, he relished situations in which he was called on to do nearly the impossible to secure a comeback win.
Contrast Ortiz’s heroics with the tribulations of Blair Walsh, then the placekicker of the Minnesota Vikings, who was called on to kick a 27-yard “chip shot” field goal in the final seconds of a wild-card game against the Seattle Seahawks in 2016. With a trip to the divisional round on the line, Walsh, who had been as reliable as any kicker during the regular season, missed the kick.
So why, in these high-tension settings, did Ortiz succeed and Walsh fail? And why do some litigants shine and others fall flat on their face at deposition, arbitration or trial?
To understand the answer to that oft-perplexing question, keep in mind that when it comes to effective performance in major litigation events, not all clients are created equal. Academic research has posited a host of variables that affect performance in tense situations. Some clients are naturally anxious, whether due to previous life events or because of cognitive or intellectual deficits. Others have “ice water in their veins” and are impervious to pressure; they follow instructions to the letter. (Active and retired members of the military often fit this description.) Those who are natural optimists tend to perform better than those who have a pessimistic outlook.
Genetics, too, can play a role. People have varying degrees of neuropeptides, which are small molecules that are secreted from neuronal cells in the brain. Studies have found a positive relationship between neuropeptide levels and the brain’s ability to respond to stress.
Your client preparation should begin with some placement of the client on what I call a “continuum of anxiety.” This involves gauging the client’s fears and apprehensions about what lies ahead, not only by learning as much as possible about the client’s background, but also asking directly if he or she is anxious or scared about testifying.
The place where the client falls on the continuum should also dictate both the nature and quantity of your preparation.
Start at 30,000 feet. An appropriate first step in substantive preparation is to introduce the event — whether it be deposition, arbitration or trial — at a 30,000-foot level. This would involve explaining generally what is to take place, what counsel’s role will be at the event, and how the preparation process will unfold.
Acknowledge … and practice, practice, practice. We do a significant disservice to our clients if we act as if these events will not be anxiety-provoking for them. There’s nothing wrong with saying, “You might feel anxious at times while this is happening, and that’s OK. If you’re focused on the task at hand, you’ll do just fine, even if you’re a little anxious.”
Still, there’s no substitute for trying to simulate that anxiety through a vigorous mock deposition or cross-exam. It’s better for clients to actually experience some tension in advance rather than have it infect them for the first time on the date of the event.
Allow time for remedial measures. Because an assessment of the client’s anxiety or fear quotient may necessitate some extensive remedial measures, your preparation should begin well in advance of the deposition, trial or arbitration date. This gives you time to introduce measures that can relieve or at least reduce the client’s anxiety, such as mindfulness exercises, meditation, yoga or an exercise regimen.
While I recognize that these techniques might not work for some — or may be seen as cheesy or unnecessary by others — they should at least have their place on the preparation “menu.”
Think process, not results. Research has shown that when people focus on the process itself, and not the result or consequences of that result, they tend to perform better. In this regard, your preparation can be valuable if you can persuade the client to simply focus on what they have been instructed to do. I advise my clients to let me worry about how the answers would impact the case. Too many cases go off the rails when clients obsess over testifying in a manner that they believe will please counsel or enhance their position.
Make a “trial run.” Finally, the client’s anxiety can be reduced dramatically by making them feel comfortable with the environment in which the event will take place. There’s nothing wrong with taking a drive to the courthouse and courtroom where the case will be tried, or seeing how a deposition room is set up. If this is not feasible, the client can view a video that contains a realistic depiction of a trial or deposition.
To be sure, even if you use every reasonable preparatory measure, there is no guarantee your client will perform at a high level. After all, how many of us have had our own “Blair Walsh moment”? And while our clients can reveal much about themselves, we’re not in a position to determine whether they have a low, average or high neuropeptide level in their brain. All litigators can do is take reasonable measures to reduce the risk of poor client performance due to anxiety.
Alan S. Fanger is a litigation attorney and the founder and CEO of EmpowerLegal, Inc., a Boston area company that provides an online learning platform to assist clients in preparing for major litigation events. Follow him on Twitter @lawfang.
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