INITIAL CONSULTATION WITH AN ATTORNEY
Clients usually know what they want when they contact an attorney, but rarely know how to achieve it. “I have been sued, please defend me”; “I haven’t been paid for this job, can you help me file a lien”; or “My roof is leaking and I am tired of getting the runaround from my contractor.” Prior to your initial meeting with your attorney, you should gather the following documents and plan to bring them to the initial meeting:
- Make copies of all documents you believe are essential to your case. Depending on the nature of the case, this should include all contracts, change orders, invoices, and correspondence including emails exchanged between you and the other individuals involved in the project. If the case involves construction defect issues, your attorney will also need to see all of the plans and specs, building permits, inspection cards, change orders, and demand letters.
- Prepare a list of potential witnesses including names, current addresses, telephone numbers, and email addresses. This list of potential witnesses should also include a brief description of the facts which each witness can testify to.
- If you are being sued, make copies of all insurance polices that cover your work including the declarations page for each. Also, make copies of all bonds that you obtained for the project in question.
It is important to understand that the initial stage of the litigation process, which begins with the initial meeting with your attorney, is the most important with respect to the development of the attorney-client relationship that continues to evolve throughout the litigation of the case. If the attorney is just a “yes” man at this first meeting, it will be very difficult for him to be anything other than that as the case progresses.
The initial meeting with your attorney should include a detailed review of the facts of your case as well as a review of your insurance coverage, if applicable. If are considering filing a lawsuit, your attorney should provide you with an explanation of your options. Is litigation the best way to go? Do you really have a case? What can happen if you do file a lawsuit? If you do file a lawsuit, what is the attorney’s estimate of the cost in terms of attorneys’ fees and court costs? How much time will be required of you and your employees in answering discovery requests, being deposed and attending a trial? Still other considerations might include the negative business consequences that might result from litigation such as the loss of other clients who don’t want to do business with active litigants. Have all other alternatives to litigation that
might resolve the situation more economically been considered? After all of these issues have been explored, and the only solution to the problem continues to be litigation, ask that your attorney explain the litigation process to you. If you are being sued, your attorney may simply assist you in tendering your defense to an insurance carrier.
I often tell prospective clients: “If you ever walk into an attorney’s office and he/she tells you that you have a case that can’t be lost, get up and walk out—because the attorney is both an idiot and a liar!” It is imperative that you understand the risks and the benefits of litigation, and have realistic expectations for each stage of the process.
PREPARING THE LAWSUIT
Even though the drafting of the complaint (if initiating the lawsuit) or responsive pleading to the complaint (if responding to a lawsuit) will be handled by your attorney, I often request that my clients provide me with a written synopsis or summary of the pertinent facts before drafting anything. This saves me a great deal of time when I sit down to actually write the complaint or other responsive pleading. I also suggest that you request that your attorney provide you with a draft of the complaint or other responsive pleading so that you can review it for any factual errors prior to the document being filed with the Court.
You should also request that your attorney explain his/her theory of the case and all claims/defenses that will be asserted in the filings with the court. The decision to prosecute specific claims or defenses is a strategic one. It’s not important for you to understand the technicalities of the law – that’s what you rely on your attorney for – but, it is important for you to have a general understanding and agreement as to the litigation plan your attorney intends to implement in order to achieve a successful outcome of your case.
RESPONDING TO DISCOVERY AFTER A LAWSUIT HAS BEEN FILED
This is by far the longest and most costly stage of the litigation process. It is during this stage that each side gets to “discover” what the other side is going to say at trial. Generally this is accomplished through the propounding of interrogatories (written questions); request for
production of documents; request for admissions; and depositions.
Many clients get frustrated during this stage of a case, due to the breadth of what must be told to the other side. The scope of discovery is very broad. A party is allowed to make inquiries about any area that is relevant to the facts at issue in the case or any area that is calculated to lead to the discovery of relevant admissible evidence. In other words, the question need not be aimed at seeking relevant information; it only has to seek information that might lead to the discovery of relevant evidence. Of course, attorney-client privilege may be raised as an objection to any discovery request, if the request seeks protected information. The attorney-client privilege will protect from disclosure any communications by and between the client and his/her attorney in which the client sought or obtained legal advice or counsel. As a general rule, almost all communications with your attorney are privileged, including letters, e-mails, phone calls, and conversations.
Unfortunately, clients make the most mistakes during the discovery stage. In many cases, when the other side asks for information or documents, clients either do not understand the need to make a complete response, or worse, they do not want to tell everything they know or produce every document they have. DO NOT FALL PREY TO THIS MISTAKE.
SUMMARY OF RULES FOR DEPOSITION WITNESSES
- Tell The Truth.
- Listen Carefully To The Questions Asked.
- Answer Only The Question Asked.
- Do Not Explain Answers Unless Asked To Do So.
- Do Not Guess Or Speculate.
- No “Off The Record” Statements By The Witness — Everything you say will be on the record and recorded by the court reporter.
- Give Verbal Responses — You should answer “yes” or “no” rather than “uh-huh” or “uh-uh.” Gestures cannot be recorded. Similarly, head nodding or shaking cannot be transcribed and all responses must be made out loud using words.
- The Substance Of Conversations Will Suffice — Some of the questions may be about conversations that you have had with other persons. When you remember precisely what was said by whom and in what order, you should testify to the best of your memory. However, if you do not recall precisely what was said, you should testify as to what you remember regarding the “substance” or “gist” of the conversation.
- Documents Are Not Always Accurate — You may be shown documents during the course of the deposition, including documents with your signature. That does not mean that the action described in the document necessarily occurred. You do not need to say “if that’s what is says it must have happened.” Instead, you should rely on your own memory independent of the document.
- Do not Exaggerate Damages or Downplay “Bad” Facts — The lawyer questioning you wants you to lie. He/she hopes you will exaggerate your testimony or say something that is untrue so he/she can later argue that you lied. Don’t fall for this. If there are bad facts in your
case, don’t deny it. For example, don’t say you had only two beers if you actually had six. YOUR CREDIBILITY IS CRUCIAL. DO NOT LIE ABOUT ANYTHING. THE TRUTH EVENTUALLY COMES OUT.
In most cases, the trial stage is the final stage of the litigation process – the process that most people are somewhat familiar with. When a movie or television portrays the work of an attorney, it is typically in a courtroom setting. Despite this familiarity, most construction
litigation clients have never stepped into a courtroom, much less been a witness at a trial. You should be prepared to spend considerable time with your attorney preparing for trial. This includes rehearsing your trial testimony, reviewing the exhibits that will be introduced
through your testimony and discussing questions that your attorney anticipates will be asked by the opposing attorney. The key to success in trial is preparation, preparation and preparation. The biggest mistake you and your attorney can make is being UNPREPARED.
Your attorney should explain the role of the judge and the jury in the context of the trial. If the case proceeds as a court trial, the judge is the fact finder. If the case proceeds as a jury trial, the jurors are the fact finders, so they sit in judgment of the parties. Jurors examine your
every move, every statement, and every aspect of your appearance. The jurors are judging you based on your dress, your posture, and your demeanor. Worst of all, most jurors do not want to be jurors. While they are fulfilling their civic duty, they are there to the detriment of their work and their families. In sum, they are not a friendly audience.
During a trial, it is critical that your understand that you are essentially “on stage” during the entire trial. The jurors will be watching you, not only when court is in session but during breaks and recesses and when court is not in session. Always be careful of what you say and how
you act. Never say anything to your attorney that can be overheard by jurors. To avoid this problem, I make it a practice to provide my clients with a note pad and pen so that they can write down any comments or questions they have for me during the trial. Also, be aware of your
facial expressions and what jurors might read into those expressions. I encourage my clients to follow the old adage – “never let them see you sweat”. Of course many exceptions to this rule apply, particularly, when a client is testifying, and the testimony is best served with some natural emotion and conviction.
Ultimately, the most important concept I try to convey to my clients is this: trials are often won or lost based on a very simply premise – the party who is more likable wins. Assuming your case proceeds as a jury trial, the following are some things to keep in mind:
What to Wear in Court — Wear conservative clothes that you would wear to a funeral. Do not wear sneakers, jeans or t-shirts and if you have tattoos, cover them. Don’t wear clothes you would not normally wear. If you are an executive of a company, you might be
accustomed to wearing a suit and tie at work and should wear such attire in the courtroom. However, if you are a contractor, who never wears a suit, I recommend wearing dress pants (no jeans), black shoes and a collared white or blue shirt. If you have a nose or ear ring, remove them. I recommend that women wear a dress pant suit or a dress. Do not wear high heels or an elegant gown. Your clothing should be conservative, but not over-the-top.
Arriving on Time for Court — Most court sessions begin at 9:00 a.m. and usually end between 4:00 and 4:30 p.m. with a one and one-half hour lunch break. Always arrive early for Court. DO NOT BE LATE – the worst impression you can leave a judge or a jury is to walk
into court late. Not only is arriving late disrespectful to the Judge and jury but it sends a message to everyone involved that you don’t care about your case.
How to Behave in Court — When the Judge and jury enter the courtroom, you should always stand and remain standing until they sit. Standing is a sign of respect. Keep in mind that the Jurors are ALWAYS watching you: The jury watches everything you do—inside and outside the courtroom. When you are entering the courthouse or walking to lunch, the jurors are watching you and forming opinions of you. If you act in any way that the jury considers improper, they will form a negative impression of you and that could seriously impact your case.
Bring Family and Friends to the Trial — Courtrooms are open to the public. Therefore, family members and friends can sit in the spectator gallery in the back of the courtroom. (Note: witnesses who have not yet testified may be excluded from the courtroom.) The presence of family and friends is much better than an empty courtroom and hows the jurors that the outcome of the trial is important to a lot of people.
How to Prepare for Your Testimony — Study your deposition transcript over and over again and as often as you can. Have a friend/spouse read the questions in the deposition transcript to you and answer them to make sure that the responses that you give are consistent with your deposition testimony. If there is even a slight inconsistency between your deposition testimony and trial testimony, the opposing attorney will accuse you of lying during cross-examination. If this happens, you may lose credibility with the jury which will likely result in you losing your case. Preparing for your trial testimony can prevent this from happening.
How to Testify at Trial — When you testify, follow these rules:
- Always make eye contact with the jurors. Eye contact is a sign of honesty. You should always have constant eye contact with at least one juror during your testimony. When you look down, up or to the side, this will be perceived by the jurors that you are either lying or being evasive. When answering your attorney’s questions, look at him/her while the question is being asked. Then, turn towards the jury and answer the question looking at the jurors – speak directly to them;
- Do not look at the floor or ceiling or away from the jurors;
- Keep your hands away from your face and do not fold your arms. When you cover your face with your hands or fold your arms, this is a sign that you are hiding something or taking a defensive posture. Try to relax and keep your hands in your lap;
- Be Yourself – don’t be afraid to smile during your testimony. This will create a bond with the jurors;
- Avoid Drama – do not be overly dramatic when you testify. Anger and frustration over your predicament rarely persuades a jury. Crying and emotion can be okay, but only if it is real. Jurors do not like phony displays of emotion;
- As much as you might want to, don’t fight with the opposing attorney. During cross-examination, do not argue with the opposing attorney – you’ll never win. If you make a mistake, admit the mistake and make no excuses. As difficult as it may be at times, you must
always be respectful to the opposing attorney; and
- Do not make faces at the opposing party or the opposing party. Remember, jurors are always watching you.
PHASES OF TRIAL
Jury Selection — The first day of the trial is usually devoted to jury selection. During jury selection, the attorneys ask questions of as many as 16 prospective jurors who are randomly selected among the 40-50 prospective jurors seated in the spectator gallery in the courtroom. Jury selection begins by the plaintiff’s attorney asking questions of the prospective 16 jurors and when finished, the defense attorney questions them. The goal is to identify those jurors who can be completely impartial in deciding the facts of a case. It is important that you make eye contact with the prospective jurors just as they will be watching you. Remember – first impressions are extremely important. Pay attention to the answers that the jurors give to the questions asked. Again, I ask that my clients jot down any comments they have about the prospective jurors. While it is ultimately your attorney’s job to pick the jurors he/she wants, I regularly seek the input of my clients in the selection process.
Opening Statements — Once the jury has been selected, the attorneys will make their opening statements. The plaintiff, in every case, has the primary burden of proof at trial and always gets to go first in each phase of the trial. Therefore, the plaintiff’s attorney will make
his/her opening statement first, followed by the defense opening statement. Opening statements are not evidence. Rather, the opening statement affords the attorneys for both sides an opportunity to explain what they believe the evidence will in the case will show. In this sense, the opening statements are like road maps to be used by the jurors to follow the evidence.
Presentation of the Evidence — Again, the plaintiff gets to present his/her evidence first. His/her attorney will present the testimony of witnesses and introduce other documentary evidence to support the plaintiff’s case. The witnesses may include a combination of fact witnesses such as your co-workers, employees, sub-contractors, laborers, etc., as well as expert witnesses. After the plaintiff has presented all of his/her evidence, the defense will present its evidence, if any. Once all parties have presented all of their evidence, the Judge will then instruct the jury as to the law that applies to the case – the “jury charge”.
Closing Arguments — Typically, in California courts, the Judge instructs the jury and then closing arguments follow immediately thereafter. As with the other phases of the trial, the plaintiff’s attorney makes his closing argument first, followed by the defense closing argument. However, because the plaintiff has the burden of proof, the plaintiff’s attorney is afforded the opportunity to present a second closing argument – the “rebuttal argument”. The complexity of the case will dictate how much time the Judge allows for closing arguments. The closing argument is meant to summarize the evidence and explain how the law applies to the evidence presented. Attorneys use closing argument as their final pitch to persuade the jury that their client’s side of the case should win.
The Verdict — The verdict of a California Superior Court jury does not have to be unanimous –9 out of 12 jurors must agree on each question on the Verdict form. (Note: In Federal Court, where juries usually consist of 9 jurors, the verdict must be unanimous.). Once
the jury agrees upon the answers to all of the questions on the Verdict form, the foreperson of the jury informs the Judge that the jury has reached a verdict. The Judge then asks the jury to enter the courtroom and announce the answers to the questions on the Verdict form. The trial ends with the announcement of the jury’s verdict .
Final Thoughts on Easing Your Anxiety at Trial — Everyone experiences stress and anxiety during trial. This is perfectly normal. There is no magic cure for anxiety in the courtroom. However, your attorney can substantially reduce your anxiety by explaining the trial process and what to expect during the trial. When my clients begin their trial testimony, I will often ask them straight out if they are nervous. Admitting you are nervous makes you more human in the eyes of the jury.
Ultimately, the best way to ease your anxiety is preparation, preparation and more preparation for your trial testimony.