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Producing the Plaintiff

You’re seated next to your client at a large table, opposing counsel on the other side. Testimony that’s accurate, clear, persuasive, and appropriate––that’s at least one of your goals. For the young lawyer, here are some general guidelines:

Keep the supply of facts flowing in response to cross-examination questions. Primarily most discovery depositions boil down to the simple question––why should we believe you? You job is to instill in your clients that they must provide a steady stream of facts––and it can’t dry out. It’s as if they’re always, in some manner, providing some form of answer to that simple question. For example, it will not do simply to assert “I still have pain.” Why should we believe you? Because I take ibuprofen on most days. Why should we believe you? Because I can no longer reach behind my back without pain. Why should we believe you? Because I used to be able pick up and carry my two–year old my grandson without pain and now I can no longer do this. Etc.

“Now I started by proposing that we try together to make appropriate, perspicuous, accurate, persuasive writing a hall-mark of anything turned out by our English School here, and I would add (growing somewhat hardier) a hall-mark of all Cambridge style so far as our English School can influence it. I chose these four epithets accurate, perspicuous, persuasive, appropriate, with some care, of course as my duty was; and will assume that by this time we are agreed to desire appropriateness.”

Defense will focus first (and last) on that which is contained in the medical records. “The medical records we’ve obtained state that as of your last physical therapy visit you were symptom free. You agree that after that date you no longer experienced any pain arising from this accident?” It’s your job to make sure you’ve sensitized your client to this line of questioning. “While on that last visit that was true, but since that time my condition has changed.” Or: “While it’s true the very worst pain has resolved, I still have soreness, from time to time, in the areas that were injured.” Or it may be: “Yes. That’s true. I no longer have symptoms of pain, but I’m still not entirely well.” Or it may simply be: “Yes. That’s true. But those eight months after the accident were very difficult, and I still think about them.”

“Take, for instance, a critic who should be old enough to impress you—Dionysius of Halicarnassus. After enumerating the qualities which lend charm and nobility to style, he closes the list with ‘appropriateness, which all these need’:—As there is a charming diction, so there is another that is noble; as there is a polished rhythm, so there is another that is dignified; as variety adds grace in one passage, so in another it adds fulness; and as for appropriation, it will prove the chief source of beauty, or else of nothing at all…Or listen to Cicero, how he sets appropriateness in the very heart of his teaching, as the master secret:—’Whatever his theme he will speak as becomes it; neither meagrely where it is copious, nor meanly where it is ample, nor in this way where it demands that; but keeping his speech level with the actual subject and adequate to it.’ …The perfection of style is variety in unity, freedom, ease, clearness, the power of saying anything, and of striking any note in the scale of human feelings, without impropriety.”

Keep fighting. An adverse fact presented directly as a challenge to you does not mean you give up. You keep fighting. A contest is occurring and it’s your job to prepare your client to compete successfully in that contest. There are conclusions, but to reach those conclusions your client must testify to verbal descriptions of physical facts. Give some serious thought to what it means to describe something. Webster defines describe as “to represent or give an account of in words.” A description implicates any number of components––physical details, mental responses, context, circumstance, relationships, and, in general, a contrast between life before the incident and life after. What would your client’s life have been like had the injury not occurred? What goals were on the horizon? What dreams, once within reach, have now reached their terminus?

“Perspicuity.—I shall waste no words on the need of this: since the first aim of speech is to be understood. The more clearly you write the more easily and surely you will be understood. I propose to demonstrate to you further, in a minute or so, that the more clearly you write the more clearly you will understand yourself. But a sufficient reason has been given in ten words why you should desire perspicuity.”

The defense is waiting. The defense is waiting for your client to exaggerate. It’s almost if there’s a credibility light switch that can be flicked on and off. Exaggeration gives the defense a free gift since any claimed injuries must be related, and proportionate, to both diagnosis and treatment. The defense is waiting. The defense is waiting for your client to misrepresent. Facts need to correlate precisely (not approximately) with all other facts in the case. It’s your job to make sure they do. The defense is waiting. The defense is waiting for your client to cave in, concede, give up. Just because your client is being challenged does not mean your client has to agree. There are polite (and emphatic) ways to disagree. “No, that’s not correct.” “No, I still have pain.” Or how about: “No, but oh how I wish that were a true statement.”

“Accuracy.—Did I not remind myself in my first lecture, that Cambridge is the home of accurate scholarship? Surely no Cambridge man would willingly be a sloven in speech, oral or written? Surely here, if anywhere, should be acknowledged of all what Newman says of the classics, that ‘a certain unaffected neatness and propriety and grace of diction may be required of any author, for the same reason that a certain attention to dress is expected of every gentleman.’ After all, what are the chief differentiae between man and the brute creation but that he clothes himself, that he cooks his food, that he uses articulate speech? Let us cherish and improve all these distinctions.”

Don’t check your cell phone while your client is testifying. Don’t send or receive text messages. Don’t search the internet. With regard to notes, you’re not a transcriptionist. Your note taking should provide bullet points of strength and weakness––and the odd, explanatory detail. (This last, more important than you think…) Pay close attention to every question and every answer. Object when necessary. Ask just before the start: Why should we win? What evidence do we have that supports our case? Ask just before the end: What vulnerabilities exist? What evidence do we have to remedy or rectify those vulnerabilities? Ask clarifying questions yourself if certain areas need further exploration or if certain topics have been left unaddressed.

“Now hear this fine passage:—Thought and speech are inseparable from each other. Matter and expression are parts of one; style is a thinking out into language. That is what I have been laying down, and this is literature; not things, but the verbal symbols of things; not on the other hand mere words; but thoughts expressed in language. Call to mind, gentlemen, the meaning of the Greek word which expresses this special prerogative of man over the feeble intelligence of the lower animals. It is called Logos; what does Logos mean? it stands both for reason and for speech, and it is difficult to say which it means more properly. It means both at once: why? because really they cannot be divided…”

The deposition of the Plaintiff will often be your client’s first and last exposure to the legal process. Support them competently, but gently. Be there for them; have their back. While they’re testifying, check them from time to time to see how they’re doing. Keep seriously-sincerely-steadily advancing the essential components of your case. Produce the facts: if something’s not mentioned, how will others know?

“Persuasiveness; of which you may say, indeed, that it embraces the whole—not only the qualities of propriety, perspicuity, accuracy, we have been considering, but many another, such as harmony, order, sublimity, beauty of diction; all in short that—writing being an art, not a science, and therefore so personal a thing—may be summed up under the word Charm. Who, at any rate, does not seek after Persuasion? It is the aim of all the arts and, I suppose, of all exposition of the sciences; nay, of all useful exchange of converse in our daily life. It is what Velasquez attempts in a picture, Euclid in a proposition, the Prime Minister at the Treasury box, the journalist in a leading article, our Vicar in his sermon. Persuasion, as Matthew Arnold once said, is the only true intellectual process. The mere cult of it occupied many of the best intellects of the ancients, such as Longinus and Quintilian, whose writings have been preserved to us just because they were prized. Nor can I imagine an earthly gift more covetable by you, Gentlemen, than that of persuading your fellows to listen to your views and attend to what you have at heart.”

All quotations from: Arthur Quiller-Couch, On the Art of Writing: Lectures delivered in the University of Cambridge 1913-1914 (Cambridge University Press 1917)

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