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| Marcel Strigberger |
Sounds wise, but I doubt Benjamin Franklin carried on a busy litigation practice.
During my 40-plus years in the trenches I always tried my best to prepare my clients prior to examinations for discovery. Then again I suppose the Blue Jays also prepared to win the World Series. Alas, notwithstanding my adherence to Benjamin Franklin’s credo, some of my clients still dropped the ball no matter how well I prepared them.
I would send out a letter describing the process and of course we would meet in advance to make sure the clients understood what awaits them. Generally after explaining the drill, admonishing the client to tell the truth, these instructions specifically boiled down to about five main points.
1. Keep your answers short-never volunteer information
Dream on. Easier said than followed. I thought lawyers were windbags. I had a case involving a young woman who suffered severe facial scarring in a motor vehicle car accident. We pleaded that as a result of the mva she became depressed. At the discovery the opposing counsel asked when she started taking her antidepression meds. She replied, “About two years ago, before Christmas, just after I broke up with my fiancé.”
This answer opened up a Pandora’s box. The opposing lawyer beamed, as if he had just discovered the Blackbeard’s treasure. He continued, “Why don’t we delve into this break up.” His client investigated, interviewing the fiancé, who was only too happy to spill some dirt on my client, compromising our case.
(Not my fault. I warned her.)
2. When discussing your injuries, give a complete answer
After this disaster, I used to reiterate the need to keep it short, even telling clients about my “fiancé” case. Needless to say one client’s pendulum swung the other way. Mike was a sports jock, who enjoyed engaging in summer and winter sports including skiing, hockey, martial arts, marathon running, tennis, ping pong, to name just a few. I was surprised he never participated in an Olympic triathlon. Unfortunately he suffered injuries in a mva, which hit his enjoyment of life big time. At his examination he took my advice about keeping it short, to an extreme. When asked what he can no longer do, he replied, “I can’t play ping pong.”
I felt like giving him a kick under the table. What flashed in front of me was that iconic James Bond scene in From Russia With Love where Colonel Gelb the Spector agent, activates a poison switch spike in her shoe as she struggles with Bond. But actually I felt like kicking myself. Where did I go wrong? At least the client listened to me about keeping his answers short.
3. Do not exaggerate your injuries
A common question defence counsel would ask was “on a scale of one to 10 how would you rate your backaches? One is mild and 10 is a 911 call.” Although this one got through to most clients, one client here actually said emphatically, “Ten!”
Opposing counsel continued: “Do you want to take a break so you can call an ambulance?” The client replied, “No I just have tostand up; I can’t sit for more than 15 minutes straight. “
The problem at this point was than he had already been seated for over an hour.
I just knew my case hit an iceberg. But unlike the Titanic we had no lifeboats.
4. Do not give absolute numbers such as for times, distances, dates, etc., unless you are certain
I would suggest they leave some wiggle room, saying “about 50 meters” or “approximately three months,” or “between 10 and 15 seconds.” Although this suggestion worked most of the time, there is a tendency for people not to want to sound ignorant and they feel they must be specific.
I was once the beneficiary of an opposing party who when I asked how fast his truck was travelling in a 50-kilometre zone about 10 seconds before facing an amber light near the intersection and he replied, “I was crawling, 35 to 40 kilometres per hour, neither more nor less.” (And yet he could not stop.) I went on to another topic quickly, not trying for a home run. I wish those Blue Jays would have fared this well.
5. This is a solemn occasion. Don’t be afraid of the other lawyer but don’t get too friendly either
This was not a common problem, but it once took me aback
I warned the client that opposing counsel could be a bit abrasive. To my surprise my opponent showed up wearing a tie covered with Looney Tunes characters. My client breathed a sigh of relief. He expected an ogre. And he was getting Bugs Bunny. Furthermore, on the contrary, the two became a bit cordial and they started discussing favourite cartoon characters. The other lawyer just loved the Roadrunner while my client rooted for Wile E. Coyote. They achieved instant rapport agreeing that the number-one character was Yosemite Sam. The atmosphere throughout was certainly light and jovial. The way the mood persisted I thought maybe I could leave the room; my client does not need my services at this stage. Fortunately the case resolved favourably shortly thereafter. Maybe it helped that I also added my vote of approval of Yosemite Sam. I lied. My favourite is Foghorn Leghorn.
Benjamin Franklin was right on with his comment about the vitality of preparation. However, for the best of us no matter how well prepared some of our cases will somehow still have blown up at the examination office, though maybe not from a device manufactured by ACME Bombs.
Marcel Strigberger retired from his Greater Toronto Area litigation practice and continues the more serious business of humorous author and speaker. His book, Boomers, Zoomers, and Other Oomers: A Boomer-biased Irreverent Perspective on Aging, is available on Amazon (e-book) and in paper version. His new(!) book First, Let’s Kill the Lawyer Jokes: An Attorney’s Irreverent Serious Look at the Legal Universe is available on Amazon, Apple and other book places. Visit www.marcelshumour.com. Follow him on X @MarcelsHumour.
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