As published in The Chicago Daily Law Bulletin
I really enjoy helping lawyers with case problems.
Recently, I heard from a plaintiffs’ lawyer asking what to do about a cruddy client.
It’s a good case—it’s just that the plaintiff doesn’t present well. He’s going to turn the jurors off or simply not connect with them.
It’s not merely a trial problem. It definitely affects settlement value.
I really enjoy helping lawyers with case problems.
Recently, I heard from a plaintiffs’ lawyer asking what to do about a cruddy client.
It’s a good case—it’s just that the plaintiff doesn’t present well. He’s going to turn the jurors off or simply not connect with them.
It’s not merely a trial problem. It definitely affects settlement value.
A great plaintiff is a joy. The lawyer is proud to represent him or her no matter how small the case. It’s the first thing they mention and I can see it immediately when we meet. The lawyer is inspired and motivated. They’re eager for a jury to see the client. They don’t want to settle.
The clients are grateful and appreciative of the lawyer’s efforts. They trust their lawyer. I totally enjoy talking with them and hearing about them. I can see them connecting to a jury.
The defense usually acknowledges enhanced value to the case.
It settles for more.
Cruddy plaintiffs can be rambling, exaggerators, whiners, can never recall important facts, won’t answer questions, change their stories, are argumentative, look or act weird, have lots of prior claims, are entirely focused on their case, nothing else in their life matters, are full of excuses and long explanations, are boastful or patronizing, deny the obvious, are easily incited to anger, have lots of other life issues, and can be insatiable. No result is good enough, everything is going wrong from the start. No treatment helped. Their lives are destroyed and they cannot do anything. It’s all about “the principle.” It’s never about the money. No amount is enough. They don’t really trust their lawyers. They don’t trust anyone.
Or, they can’t verbalize their injuries. Maybe it’s a language problem. Maybe it’s a cultural thing. Maybe it’s pride. Maybe it’s depression. Maybe the inability to communicate their injury is part of the claimed damage.
Whatever the reason, if the jury isn’t going to like the plaintiff, it’s a major problem and the defense knows that.
What can a plaintiff lawyer do with an unlikeable client? Options to choose from include:
It’s the lawyer’s job to learn the full story and learn how to communicate it in a compelling way. It’s great when your clients help. It’s still your job when they don’t.
The clients are grateful and appreciative of the lawyer’s efforts. They trust their lawyer. I totally enjoy talking with them and hearing about them. I can see them connecting to a jury.
The defense usually acknowledges enhanced value to the case.
It settles for more.
Cruddy plaintiffs can be rambling, exaggerators, whiners, can never recall important facts, won’t answer questions, change their stories, are argumentative, look or act weird, have lots of prior claims, are entirely focused on their case, nothing else in their life matters, are full of excuses and long explanations, are boastful or patronizing, deny the obvious, are easily incited to anger, have lots of other life issues, and can be insatiable. No result is good enough, everything is going wrong from the start. No treatment helped. Their lives are destroyed and they cannot do anything. It’s all about “the principle.” It’s never about the money. No amount is enough. They don’t really trust their lawyers. They don’t trust anyone.
Or, they can’t verbalize their injuries. Maybe it’s a language problem. Maybe it’s a cultural thing. Maybe it’s pride. Maybe it’s depression. Maybe the inability to communicate their injury is part of the claimed damage.
Whatever the reason, if the jury isn’t going to like the plaintiff, it’s a major problem and the defense knows that.
What can a plaintiff lawyer do with an unlikeable client? Options to choose from include:
- Bury the lead. Call all of the other witnesses first so that the jury has heard the story in full before the plaintiff takes the stand. This can work at arbitration or trial.
- Make him a cameo player. Find other witnesses to testify to damages or liability issues better than the plaintiff. Find lay witnesses like co-workers, a pastor, a bowling teammate or a neighbor, even a family member.
- Buttress. Bring in documents or video or other witnesses or demonstrative evidence that supports the plaintiff.
- Inspire. When you start the case, collect meaningful souvenirs. Scrapbooks. Photographs. The bowling ball plaintiff used for that record score. The fishing poles he can no longer use. The birthday cards, wake book, her recipe book, souvenirs from a trip, postcards, an airplane ticket—anything particularly evocative of important memories before the occurrence. This can also work for post-accident souvenirs like “get well” cards, crutches, casts, splints, and empty pill bottles.
Put them all in a box from the start of the case and don’t show them to the plaintiff until trial. When testifying, pulling out a few right then may help the plaintiff remember and describe an important aspect of life before the occurrence. - Investigate. Maybe the problem is with you. Maybe you don’t have enough information about the plaintiff or his or her story. Maybe you are not understanding something key. Have you been to their home? Have you looked around? Eaten dinner there? Have you talked to the family? The estranged son? The therapists? The nurses? The co-workers? Have you thoroughly researched every possible source of information that will help you understand the plaintiff?
- Embrace. Is there a way to work the problem into the case story? Maybe this injury is worse to this plaintiff because of the plaintiff’s other problems. Maybe this is someone who has been struggling with a problem for a long time. Maybe the problem led to misunderstandings leading to errors in records. Maybe it shows he or she is human and simply reacted badly to a tough situation. Maybe they are lonely or scared or sad, making it all the more difficult to express and deal with their situation.
- Improve. Work with your plaintiff. Take them to watch a trial. Take them to watch a deposition. Take them to an empty courtroom to walk around and get the feel of it. Have them sit at counsel table and then call them to the stand and just talk to them. Let them stand in the middle of an empty courtroom and sing! Let them get comfortable.
Videotape him or her testifying. Play back portions of what they do well and clips of what needs work. Play back the video at double speed to highlight traits and mannerisms. Have the plaintiff tell the story, parts of the story or even tell completely unrelated stories to others in the firm or even to strangers.
Bring in professional help to work with him or her. Have them talk in private to a social worker or psychologist who can help you understand the issues and help you understand how to present them. - Create your own space. When the plaintiff is on the stand, get close enough that he feels he is just talking to you. Create a very safe space for him or her. Let the jury be observers to a very private conversation between the two of you. Just be sure all can hear.
- Front it. Carefully and appropriately, tell the jury, the judge, or the arbitrator of the issue from the start. Don’t let anyone be surprised.
- Emphasize. Hammer on the strengths of the plaintiff’s testimony and the other strong elements of the case.
- Contrast and deflect. Can you show worse traits in the defendant’s witnesses and say that the jury shouldn’t ignore the testimony just because of them?
- Suppress. Keep the plaintiff off social media. Remind him there are cameras everywhere. Don’t let him get into uncharted territory. Give strict limits to follow.
- Repeat. Practice and review from different angles, in different places, different times to different audiences.
- Explain. Sometimes you can explain the reason or origin for the problem, especially if it’s not the plaintiff’s fault, like a language issue. Better is if another witness does it.
- Bifurcate. If you have to have the plaintiff testify to a key point, maybe call him or her for that point and do the rest later.
- Distract. Get the plaintiff talking about something he or she can talk about well, something important to him or her, and then go into the case. Maybe there’s a slightly embarrassing story or nickname that will make them smile before you get serious.
It’s the lawyer’s job to learn the full story and learn how to communicate it in a compelling way. It’s great when your clients help. It’s still your job when they don’t.