I read this article today on the Massachusetts Lawyers Weekly. Unfortunately, it was passwod protected. However, the article is also available on The Daily Record’s Website: NYDailyRecord. The article is about mistakes lawyers make when preparing, or more to the point not preparing, clients for depositions, trial and other testimony. I found the article extraordinarily insightful, and intend to post several blog entries on the issues raised in this article.
I want to get the link to the article itself, along with a few choice excerpts, up right away, because I want to refer my own clients to it. The second mistake referenced in the article is “The client’s too busy.” It is true that people are busy, and that preparing to testify is certainly not my idea of a good time. However, the problem is not so much that “The client’s too busy.”, as it is that the client has not been properly advised of the importance of the preparation. I know in my own case that I do not have time; I make it. That is to say, I do not have time to do one more thing. However, if something is important enough, I make time for it. Similarly, clients do not have time either, but if something is important, they will do it. I am hopeful that this article will help some of my clients understand why I do the things I do, especially why we do such detailed preparation. I have found that if they understand why the prep work is important, they will make themselves available to do it.
Commentary: 7 big mistakes lawyers make
By Dolan Media Newswires
Posted: 1:12 am Thu, October 31, 2013
Before a lawyer can convince a client to take on the burden of preparation, the lawyer has to be convinced. Unfortunately, while law schools may do a good job of teaching legal principles and theory, they often ignore the true focus of real world legal practice: the client.
Just as the political campaign mantra “It’s the economy, Stupid!” was designed as a reminder of what was most important, perhaps law schools should add: “It’s the client, Stupid!” to the inspirational Latin phrases that adorn their ivy halls.
For now, the reality is that too few places really teach attorneys how to deal with clients, and certainly how to teach clients something as difficult and foreign as the process of being a witness.
. . . .
[I have redacted some of the introduction, and all of the discussion of the other 6 mistakes, except for one bullet point]
- “I’m too busy.”
- “The client’s too busy.”
Many clients don’t see, or don’t want to see, how vital witness preparation is. They don’t want to take the time out of their busy lives to pay a lawyer to help them do something that they don’t think they need help doing in the first place.
The lawyer must accept the obligation to push — hard — to overcome that reluctance. None of us like to push a client like that, but we’re not doing our jobs if we don’t push. The most important battle we fight for our clients is sometimes with our clients.
Again, there are ways to work with the client to help accommodate the competing demands of preparation time and a busy schedule. Nights and weekends may sometimes be the best times. Although preparation is done best in blocks of uninterrupted time that are several hours long, I have in some instances conducted pieces of the process during long flights, limousine rides and even international telephone calls.
Flexibility, though, only goes so far. The need for time can be a constant battle, but it is a necessary one.
- “All witnesses are created equal.”
- “You never know what they’ll ask.”
One of the bullet points under this category was:
- “Wear their hat.
Constantly challenge yourself, those working with you, and even your clients to put on the other side’s hat. How would we view a set of facts if we were looking from their side? What questions would we want to ask? Brainstorm these issues with and without the client present. If resources allow it, assign someone to play that role and prepare questions accordingly.”
I found this bullet point worthwhile to share here, because there can be a misunderstanding during preparation that I have some how turned against my client and taken the other side. To the contrary, I am merely trying to show my clients what the other side is, so that they can be ready for it.
- “Preaching, not teaching”
- “The law is the law.”
- “Do I need to draw you a roadmap?”
I do hope to share and write about the rest of this article in the near future, although mistake number one: “I’m too busy” does apply to me as well. I am pleased that over the years we have basically over come these issues in my office, but there is always room to improve. I find writing about and thinking about this article helpful to me, as I think about the way we have adressed these issues when we prep clients in my office.
Daniel I. Small is a partner in the Boston and Miami offices of Holland & Knight. A former federal prosecutor, he is the author of the American Bar Association’s “Preparing Witnesses” (3d Edition, 2009). He will be the featured speaker on “Ethical Witness Preparation: Drawing Difficult Lines” at the Boston Bar Association on Nov. 6. He can be contacted at dan.small@hklaw.com. A version of this column originally appeared in Massachusetts Lawyers Weekly, sister publication to The Daily Record.