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Essential Client and Witness Prep: Doubles Tennis

Agreeing to accept a new client is like agreeing to play doubles tennis with someone you don’t know.

You arrive at your tennis club hoping to get a pick-up-game and luckily, three guys are obviously looking for a third.  One turns and says, “Hey, wanna’ join us?”  You’ve been watching this guy serve and he’s really good.

“Absolutely.”  He tosses you two balls, you get set, smash a serve and charge the net, but your partner moves right in front of you – you crash and both tumble into the net.  Very quickly you realize that this guy knows nothing about doubles tennis and appears unwilling to expend any energy running down balls.  All he wants to do is serve and delegate the rest to you.  Needless to say, you lose.  And who does your partner blame after the match? 

If you’re a seasoned trial lawyer, you’ve had this experience.  During the initial interview this potential client was good at authoritatively serving up a powerful narrative that made him look like a good doubles-partner.  But before long you begin to get the feeling that he’s not going to be, and weeks, months or years later he crashes and burns during his deposition.

Since 2003, I’ve been preparing witnesses and clients to testify in depositions, trials and arbitrations and without a doubt the hardest aspect of what I do is triage and stitching things up when a lawyer engages me after his client has crashed (both of them) during a deposition.

And this is why I’ve I taken all I’ve learned about preparing people for depositions, and created this workbook – to help clients, but also to help lawyers.


Let’s say you’re a complex commercial litigation attorney and you’re interviewing a potential client, Mr. CEO, who spent ten years working his way up the ladder at a big manufacturing company that makes very cool machines, then left and started his own company, which for the last five years has been making even cooler machines eating into the big company’s market share and profits, so they sue him, for let’s say, violating non-compete agreements.

Mr. CEO has gotten really successful and really rich, really quickly.  But there is a fraternal twin ball-and-chain that comes with achieving those things quickly that can dramatically damage the client and lawyer during litigation, Ego and Delegation.

Let’s tackle delegation first.

Yes, Mr. CEO got rich, but who really made him rich?  Well, the people who work for him, the people he delegates to every day. 

Now, many of the things he delegates are things that he doesn’t have the skills to do, but most of what he delegates are things he doesn’t want to do.

You’re the lawyer he calls when he gets sued, and within the first few minutes of meeting with him in person, you can see that he has a fantastic memory for details, is confident and a great communicator.  He’s upset by this suit, but not hyperbolic, livid or unhinged.  You accept the case and are pretty darn sure he’ll be a great client.

But you could be dead wrong because of the Delegation Twin.  All you really know at this point, is that Mr. CEO just did what made him rich – he delegated.  He hired you to do a job he’s not capable of doing and (most importantly) doesn’t want to do. 

Fine, you do know how to try a case.  But here’s what you don’t know. You have no accurate idea how good a doubles partner Mr. CEO is going to be.

When I started my company, JurisPerfect, I assumed that any client with a bunch of money on the line would do whatever it takes during a lawsuit to protect or procure that money.  If you’re a lawyer, you know how wrong I was.

For many, if not most C-Level execs and company owner’s I’ve worked with, after that initial two or three-hour conversation with a lawyer, they figure their jobs are pretty much done.  Ego tells him that when it comes time for him to testify in a deposition or at trial, he’ll simply relate the facts as he knows them.

No problem. 

During initial client interviews, seasoned lawyers know that what they are about to hear will be the most favorable telling of the tale they will ever hear.  But what many lawyers are not aware of is the neuroscience behind the memories that client is relaying.  The fact is that there is no scientifically based reason for a lawyer to ever believe that any of this potential client’s memories are accurate.

This memory study http://www.donnajobridge.com/pdf/bridge14nsy.pdf was conducted at Northwestern University Feinberg School of Medicine and published in February of 2014.  The title of the study is “Active Retrieval Facilitates Across-Episode Binding By Modulating The Content Of Memory.”

Let me explain, or rather as Inigo Montoya said in The Princess Bride, “No, there is too much.  Let me sum up.”

The study concluded that our “memory rewrites the past with current information… updating our recollections with new experiences.”

“This the first study to show specifically how memory is faulty, and how it can insert things from the present into memories of the past when those memories are retrieved.”  Donna Jo Bridge the lead author of the study said, “Your memory reframes and edits events to create a story to fit your current world.  It’s built to be current.”

So, for example, if Mr. CEO has been sued for violations based on non-compete agreements, it behooves him to edit the events to create a story to fit into his current world such as his memory of reviewing the contracts of people he hired away from the big company when he never actually saw the contracts.  As this study concludes, thes is one kind of trick our memories play on us.

I don’t want to get too deep into the neuroscience of memory, but in basic terms, there are two primary methods that create and aid our memories, recall and retrieval, and they take place in two different parts of our brains.

Recall is what happens during a client’s interview.  It’s a quick reconstruction of events.  But retrieval is what happens when a client creates a written timeline of events, requiring their brains to retrace the nerve pathways created when those events happened, which involves numerous brain regions that were not involved in recall, which helps in adjusting and/or cementing the memories.

Creating a timeline is homework, and I’ve learned that most clients, particularly very successful ones, don’t want to do their homework – they want to delegate.  But because the client or witness (personally named) in the suit often knows the facts better than most everyone else, he or she must create that timeline, and often that timeline is little more than a sketchy outline.

But even when clients create a detailed and useful timeline, the moment he hands it to the lawyer, it’s never revisited or revised by the client; it’s immediately as dead as the Rosetta Stone.


Which is exactly why we have designed our workbook, Essential Client & Witness Prep, to be a living document that will be constantly updated by the client as discovery continues.  That updating is essential, because it takes the client back to the facts he’s written over and over, so they are much more readily accessible during a withering cross-examination or even during your direct.

Essential Client & Witness Prep shows clients exactly what a great timeline needs to look like and the kind of details that need to be logged within it because creating a timeline of events is something that most people have never done in their lives.

But Essential Client & Witness Prep is not simply a timeline guide, it covers subjects as diverse as the Do’s and Don’ts of testifying when presented with a document, why “mad is an expensive emotion,” details about communicating with their lawyer such as attorney-client privilege, tricks opposing lawyers use during cross-examinations along with a listing of common warning flag questions, the reasons not to argue with opposing counsel nor to attempt to be their own advocate, and the potential value of settlements.

Digressing a moment, settling, as every commercial litigation lawyer knows, is a difficult subject to broach with clients, and just the mention of the word, quite often elicits a version of “What a minute.  Why are you talking about settling?  What’s going on?  You said we had a good case and now you’re telling me we don’t?”

Every client I’ve worked with since 2002 was absolutely certain that there was no way they could lose, but the only arbitration I’ve ever assisted with that looked impossible to lose, we lost. 


The scales of justice are not ruled by beams and fulcrums,

but by flesh and blood.

Therefore, every commercial trial lawyer must discuss settling, but she doesn’t have to be the first to introduce the idea, which is why we introduce and discuss the subject in Essential Client & Witness Prep.  If clients read those discussions there, it will make it easier subject for a lawyer to broach with a question like, “So what were your thoughts about the section in the workbook that dealt with settlements?”

Now let’s return to the initial interview to highlight the greatest benefit a lawyer can obtain by urging her clients to use the Essential Client & Witness Prep workbook.

At the end of her initial interview, she say to the client, “Okay, I want you to go online and take a look at this workbook: https://jurisperfect.com/ and start following the directions within it.  This is an important tool that helps us in preparing your case.  So by this time next week, my teams is going to need to see your first rough draft of your timeline, which the workbook will show you exactly how to create.”

By doing this, within a week, a lawyer will have a very good idea of what kind of doubles partner each client is going to be – long before he or she has spent dozens of hours of work.  If the client does nothing during that first week, and the next and the next, isn’t that good information for a lawyer to know?  In fact, isn’t that absolutely vital information for you to know in a situation where you have agreed to work on contingency or if it is a huge and/or possibly newsworthy case?

The information a lawyer gleans during an initial interview gives him or her a gut feeling about the client and the facts, but the work product Mr. CEO produces will produce measurable evidence of how good a doubles partner he will be, so Essential Client & Witness Prep is a valuable for lawyers as it is for clients.

I’ll close by addressing Ego one more time.  Beware of the client who is so sure of himself that he never even bothers to read the workbook.  That will let you know very quickly who is going to be chasing down all the loose balls.

This blog post was aided greatly by this article at HumanMemory.net: http://www.human-memory.net/processes_recall.html


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