In her new column, “A Life in the Law,” trial attorney Susan Cohodes shares pearls of wisdom from her long career in small firm practice. This month: Adjusting — or not — to the new perils of client prep.
Table of contents
As I transition away from full-time law practice, I can’t help but think about how client preparation has changed in the 30-plus years I have been practicing. One of my least favorite athletes is credited with saying, “The separation is in the preparation” — and I must grudgingly admit that in my case he’s right: The current state of preparation is hastening me toward separation.
Client Preparation Snafus
In the old days (at least pre-COVID), I didn’t have to think about technology and Zoom backgrounds and bystanders in depositions or hearings. Oh, how things have changed.
Before the shutdown, my only real client prep snafu came more than 25 years ago, when I apparently wasn’t clear in answering my client’s question about what to wear. She had looked fine for her deposition in a nice sweater and dressy jeans, and I told her so. When she asked what to wear to her arbitration, I suggested she step it up just a bit: “Maybe some nice slacks, a skirt or a dress.”
What she heard, however, was, “I think a 1980’s prom look would be awesome.”
She showed up in an off-white, tea-length lace-covered dress with a pink ribbon around the middle. Her newly bleached, permed hair was “done” and her eyes were rimmed in the classic light blue eye shadow most of us stopped wearing once we hit age 14. In fairness, I suppose I could have been more specific in my preparation instructions.
To this day, when I occasionally run into the defense counsel, she never fails to ask if I ever hear from the client who wore a prom dress.
After that incident, I pretty much nailed dep and testimony prep … until the pandemic and the shift to online meetings and hearings.
The New Prep List
The shift to online court proceedings, depositions and mediation has required new rules and a new level of prep for appearances.
Client Prep Item No. 1: Check Your Technology.
Who knew that even here in highly wired Seattle, not everyone had a desktop or laptop with a camera? During the onset of COVID, I learned that many of my clients did not, right about the time for their hearing or deposition. Fortunately, the defense attorneys I worked against on cases with technologically challenged clients were OK with a bird’s-eye view of the client’s right eye … or forehead … or the back seat of their car with traffic driving by.
Client Prep Item No. 2: Beware of Screen Backgrounds
This lesson starts with an adorable young couple deposed from their living room early in the shutdown. The collision for which I represented them occurred several years earlier and both had recovered fully from their injuries. Since they were both tech-savvy, I had no concerns about their ability to stay unmuted for the entire proceeding. Unfortunately, I didn’t really think about their screen background until the deposition began.
As each testified, I could not look away from the gigantic pile of unfolded laundry on the couch behind them. The pile dominated the screen as they testified — in great detail — about how disturbing it had been for them two and a half years prior that they could not keep their place neat and tidy, including not not being able to fold and put away the laundry.
I believe defense counsel noticed too. When I called her after the deposition, neither of us could maintain professional decorum as we talked about damages. The case settled a few months later.
Client Prep Item No. 3: Avoid Background Activity
I really thought I’d nailed this part of the prep. I made sure clients had appropriate, working technology, to be used in an appropriate venue (that is, not in the car in a noisy parking lot). I instructed clients to either put up a plain background or make sure the room in which they appeared was tidy.
All good with the prep, I thought.
Then a client showed up for a mediation while on a cruise ship. On the deck. Sunglasses, swim cover-up and all. In my defense, I was not the primary lawyer who prepped her … but still.
Fortunately, I had worked with the mediator many times and since there was no joint meeting with the defense, we moved forward with the cruise ship client.
All was fine until we returned after the second break. The client had used her break time to light up a cigarette and grab a tropical cocktail — neither of which, it seemed, she had time to finish. Apparently, there was no place handy for her to stash them because she continued to enjoy them during the mediation.
I Say “Uncle!” on the New Client Prep
Just last week, while waiting on a petition for court, I was heartened to read the following in the guidelines for online court proceedings. Apparently, the court feels my pain:
Please prepare for your hearing by making sure you are in a quiet place as hearings are being recorded, i.e., no driving, walking around, loud background noise, cooking, or eating. Please ensure that you are dressed and prepared for court. Do not eat, smoke/vape, or drive while you are attending court.
Still, I say “Uncle!” on the new client prep list. I’m afraid there could be things I haven’t thought of that still could surprise me at an online proceeding — and I don’t want to think about it at the tail-end of my career. So, it seems my fear of client preparation is yet another sign it’s time for separation.
