Prepping The Client For The Emotions Of Litigation And Trial
October 19, 2007 by David Newdorf
Filed under Lit Tip Of The Week:™ Practical Advice For Litigators
Clients rely on their lawyers for many things beyond traditional legal advice and representation. On top of the skills needed to engage the court and opposing counsel, lawyers must understand — and more importantly, prepare their clients for — the emotional side of litigation. This part of the job is rarely covered in trial advocacy training, but the importance of this role was brought home to me at the end of a trial a couple of years ago. I thought I had delivered an effective argument that defused our opponent’s case. Instead of the praise I had hoped for, the client expressed her emotional upset at hearing opposing counsel’s relentless attack on her character and conduct. This was an entirely natural reaction, but not what I had expected.
Experience had taught me to anticipate and mentally prepare for the gist and force of the other side’s arguments. I had failed to see things from my client’s perspective and therefore had not helped her to prepare emotionally for this phase of trial. I haven’t made that mistake since.
The lawyer must take similar care at every stage of litigation. Clients must be prepped to handle many things that may seem obvious or be second-nature to the trial advocate. This list includes:
- The mental exhaustion of testifying at a lengthy deposition. It is more tiring than most people understand to maintain the mental focus needed during deposition. Explain the importance of hourly breaks, even when the witness does not feel it is necessary. The witness may not realize how much the depo took out of him or her until after the depo or later that evening.
- The often slow progress of a case during discovery and the pre-trial phase. If a case is headed for trial, it can take two years or longer. This is a marathon compared to the timeline for many business transactions that occur at a sprinter’s pace. As every marathoner will tell you, pacing and mental preparation are as important to success as physical conditioning.
- The emotional roller-coaster ride of trial, as fortunes appear to shift dramatically from day to day. As a defendant during trial, you need to tell the client that things will likely appear worse at the outset because plaintiff gets to put his case on first. For plaintiffs, the client needs to understand the reverse: defendant is going to have a chance to put on its best evidence after plaintiff rests.
The list goes on and on. The key is to put yourself in the client’s position so that you can assist him or her to be mentally and emotionally prepared for the task at hand.
As for the client who opened my eyes to this? Well, she was vindicated when the jury came back unanimously for her, which compensated for the emotional ups and downs of the trial.