Tuesday, December 28, 2010

Why Preparing Clients For Deposition Is Like Making Pancakes

What is the one HUGE secret for making fluffy pancakes that rise like they should, as opposed to those paper thin, dense duds devoid of any texture or sponginess? And, by the way, as a long time weekend pancake slinger, this secret applies to homeade recipes (my usual choice) all the way down to the instant "just add water" mixes.

The secret? Don't overwork the batter and DO NOT stir the lumps out of the mix. Simply add enough liquid (per whatever directions you're following) to dissolve the dry batter and gently fold the liquid in. Within a few seconds, you'll have enough consistentcy to be able to spoon or ladle a lump-filled blob of batter onto your griddle or into your pan. And then watch them slowly puff up and rise, in airy like, glorious fashion.

Not too long ago, I came to the conclusion that preparing our clients for deposition is a lot like making pancakes. We hit clients with all these pre-deposition rules like "don't guess," "don't ramble," "answer only the question you're asked and don't volunteer anything," etc. I could go on and cite about 15 more "rules" we've all learned over the years and have bludgeoned our clients with from time to time.

But in the process of our drill seargant/paranoid recitation of all these "rules," we can inadvertantly turn our clients into robots at their deposition. We've wrung all the humor and charm right out of them. They come off flat, worried, walking on eggshells for fear of making one of those dreaded "mistakes" we warned them about over and over. And, occasionally, we have the audacity to wonder why our clients' pre- deposition charm and endearing qualities did not come through at their deposition.

Simple: we overstirred them, just like the lifeless, tasteless pancake where the batter was overworked to death in the bowl. We failed to step into their shoes and realize that, from their perspective, a deposition can be a scary process. They want to go through a 2-3 hour question and answer session with a strange (as in unknown OR odd, take your pick) lawyer about as much as their upcoming root canal or colonoscopy. At least with the latter you have some form of sedation, which may drop a deposition to third place on the list...

Look, going over depositon rules is important and should not be ignored. But we as trial lawyers also need to recognize, and appreciate, that there is a class of clients whose charm, pleasant demeanor, grace, humor--whatever those qualities may be--need to come forward and be seen by the other side. They have wonderful stories to tell, and yes, they may ramble or break a few of our precious rules to remember, but creating a "roboclient" from scaring the pants off of them is infinitely worse in my opinion.

Bottom line: every one of us comes with "lumps" in some form. By deposition time, you need to know whether your client will need a lot of "stirring," or just a little. Counterintuitive as it may seem, both with clients and pancakes, consider leaving some of the lumps in. Remember: you can send a stack of flat pancakes back to the kitchen, but you're stuck with a flat transcript and client impression.

Monday, December 20, 2010

Keep Playing Your Music...Whatever It Is...

Writing a blog can sometimes be like the job description for the Dunkin Donuts dude ("Time to make the doughnuts!") After plugging along with mine for close to three years now, I have a newfound appreciation for writers of all stripes, cartoonists, comedians writing daily copy, journalists--anyone who produces the written or spoken word under the rigors of a regular deadline.

With my "5 Horsepower" (made in the U.S.A., I'll have you know) blog in a small corner of the Internet, sometimes there's not much to write about from a legal standpoint. Some of it can be rather boring at times. And, sometimes, you just don't feel much like writing at all. You hit a wall, a lull, and sometimes you wonder as you write: does anybody really care about what you're pontificating about anyway? Does it really contribute in any meaningful way to The Internet world of knowledge, or is it merely a click or a glance in passing by surfers constantly moving and trolling for whatever they're looking for? An online "drive by" akin to a glance in a bar or an airport.

Hell, nobody pays me to write it. I do it because I have this wierd idea that there are still folks in need of legal services who may appreciate information that may answer their questions or guide them in the right direction or arm them with questions to ask any attorney before hiring them, in a sea of mass advertisers proclaiming to "care about you" in cheesy radio and TV spots while you're simply trying to watch a ball game.

It's times like this that you sometimes need a little push in the right direction, or be handed a nugget of inspiration in some strange, random place. Today, while searching aimlessly for "interesting legal news," (think "jumbo shrimp," "hot water heater," or other appropriate oxymorons) I found an interesting article about Beethoven by Robert Kahn, entitled "The Man." Strangely enough, I found the article on a legal news website of all places. As I read it, this passage at the end really grabbed me:

Bringing people comfort is hardly what artists choose to do anymore. It's not what Beethoven chose to do. But he did it nonetheless. He's been doing it for nearly 200 years after he was dead, and he'll be doing it so long as there is a human race that remembers how to play Beethoven.

Arthur Rubinstein explained it in a master class I attended 35 years ago. Most artists who give master classes give instruction: they interrupt; they get right in there. But Mr. Rubinstein, 90 years old, just sat and beamed as a procession of young pianists knocked the stuffing out of the piano for an hour. Then Mr. Rubinstein, beaming like a cherub, stood and walked slowly stiffly to the podium and said these few words to the packed auditorium: "You must keep playing music. When people get old, sometimes they get sad, and music is the only thing that can console them. So you must keep playing music."

The wisdom of that simple statement was not lost on me. I thought of so many of my elderly clients, who've been injured in some form, and now face the argument from an insurance company that their injuries are to be cheapened or lessened because they're "up there in years." They may have lost a spring or two in their step, but they continue to play their music as best they can, which may make it sound even sweeter to them and their audience because of the ticking clock of time and age.

But this lesson applies to all of us, really. No matter what you do, whether you're a teacher or a chef or grinding it out in a small business in a lousy economy, if things seem a bit overwhelming, Mr. Rubinstein's advice is golden: just keep playing your music. Whatever it is.

And that goes for you too, Neil (Young, that is--one of my personal music heroes). He just cranked out another album at age 65. So no matter what music you play, "Keep On Rockin In The Free World." And don't be afraid to hit a few wrong notes along the way...

Happy Holidays!

Wednesday, December 8, 2010

Employers' Liability For Drunk Employees Who Cause Accidents

Something to keep in mind as the holiday season and the "company Christmas party" approaches...

Facts (unfortauntely very tragic): an employee with a known history of drinking leaves his place of employment and causes a horrific crash about 9 miles from the office, killing three people. His blood alcohol limit is 0.43, five times the legal limit.. Apparently he also admits to his supervisor to drinking earlier in the day.

The man who lost his wife and two small children sues the driver and his employer, claiming they knew or should have known that the employee/driver was drunk, and should not have allowed him to drive. The employer offers the testimony of seven witnesses who claim that they had no reason to suspect he was drunk.

A Michigan jury will decide this issue this week.

What liability would an Ohio employer have when intoxicated employees negligently cause a crash under similar circumstances? The answer--it depends. For example, if the negligent employee was in the "scope of employment" at the time of the crash, the employer would be liable for the employee's negligence. However, it is not always clear whether an employee is in the scope of employment.

But even if the employee's act is outside the scope of his or her employment, an employer can be held liable in Ohio for negligent entrustment of a motor vehicle if the employee was incompetent to drive and the employer knew or should have known about it. However, in order to "entrust" a vehicle to another person, the employer would have to have some sort of ownership interest in the vehicle.

Given what happened in the Michigan case, employers would be wise to take action if they suspect that employees entrusted to drive company cars or even their own vehicles are impaired. No matter what the intracacies of the law are here, it's just common sense.