Preparing Clients for a Better Deposition in the Courtroom

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Hello everyone. Welcome to another amazing episode of the Dominate Law Podcast show. This is the place where lawyers in private practice learn about how to create a bigger life, a bigger life in terms of time, money, purpose, and relationships. As you all know, this is nre, your host. I'm also a founder of a marketing company that helps lawyers with digital marketing. Today I'm super excited to have Alan Fanger, uh, it's like Finger with an a fanger on the show. Alan is an experienced attorney. He has been practicing for more than 30 years. He's one of those people, you know, the first time I talked to him, I got the feeling that he's one of those people. He does things that he's very passionately about. So he has an amazing story. He's a, he, he does a litigation, you know, and he works on, works with clients every day.

And, uh, not only did he serve his clients wonderfully, but he also saw a problem in serving his clients. And the problem he saw was, um, you know, sometimes as as an attorney, you're trying to, uh, coach your clients to kind of help them, you know, act a certain way and be a certain way, because you get a limited time to influence the jury and, you know, forward your case. And he had had struggles with it. So he figured, you know, I'm not the only one who has this. So he tried to figure out how can we help people, not just my clients, but everyone's clients, to be better prepared for these kind of events to position you name it. So, I'm super excited to have Alan today. Alan, welcome to the show.

Hey, uh, great to be here with you.

So Alan, um, I, I know I gave people a quick intro, so can you maybe take a couple of minutes, kind of walk us through your life journey and where you are sitting right now?

Sure. So I, I went to law school. I, I actually, uh, got my undergrad degree from Michigan, university of Michigan, then went to law school at, uh, bu uh, and in two years between college and law school, I worked in the newspaper business, both as a reporter and a copy editor. So I graduated in the mid eighties when the job market was really hot, and I worked, uh, in big law for a firm called Petit and Martin in San Francisco, which unfortunately is no longer with us, uh, as a result of being the site of the worst mass shooting in, uh, the history of, uh, the legal profession. So then I moved back to Boston where I live now, and I worked for a smaller firm. And then I started my own practice. In 1990. I do exclusively litigation, and over the years have niched myself further and further, where now I do really only probate litigation, real estate, litigation and litigation relating to homeowners and contractors and condominiums.

Uh, it's a, it's a nice set of small areas to be, um, practicing it. And about five years ago, I noticed that, uh, I was, uh, I was giving handouts to clients before depositions and trials. I was providing them with extensive verbal instruction. I would rehearse their testimony with them. And regardless of the efforts that I put in to prepare them, their performance at deposition in a trial seemed to consistently fall short of my expectations. I remember one time I had a deposition where, where my client, despite about five hours of preparation, went in and just went completely off the rails. And I found myself screaming at him in the parking lot afterward. Uh, I was ready really to shake him like by his shoulders and say, what did you do here? And so I had a chance to reflect on that, and I got to thinking, you know, there has to be a better way to prepare clients for deposition and trial, and at the same time, demystify these events.

Because look, let's face it, when we're, we're in a profession that shrouds nearly everything in mystery, whether intentional or otherwise. And I did some research and I found that there was a, something called a cone of learning that was invented, and I hate to say this 'cause I went to Michigan, but it was invented by a psychology professor at Ohio State back in the forties named Edgar Dale. And what Professor Dale postulated was that we remember about 20% of what we hear, 30% of what we see, and 50% or more of what we see and hear simultaneously. So then the light bulb went off in my head and I said, you know what, maybe if I introduced audio visual preparation into my protocol for preparing witnesses, they might actually perform better. And so I set out to produce videos on both deposition preparation and trial preparation.

And then along the way, I said to myself, wow, you know, the, there's also mediation. Mediation is a third significant event in a case, and yet clients really don't know a lot about it. I mean, you heard your client in the mediation, you say to them, okay, here's what we think's gonna happen, but the clients really don't know how the process evolves during a mediation session. So I ended up producing a video that chronicles, uh, a, a fictitious but realistic mediation front to back. So what I have now are three streamable videos. They're streamable from any device, and we have iPhone and Android apps. And these videos serve two purposes. One is to prepare the clients to perform at their best in the events. And number two, it's to demystify the events themselves. Because after all, we're a helping profession. And much like when you meet with a surgeon before surgery and they outline everything that's gonna happen to you, we really need to be doing the same thing with our clients.

That's awesome. That's awesome. So you saw a problem and you saw a, uh, need and you started solving it. So let's kind of, um, get into the nuts and bolts of, of your day-to-day life in preparing clients. Right? Uh, I want you to tell stories because as you know, sometimes stories are better than theory. Uh, we remember stories because it's kind of like our, our our own way of kind of seeing and hearing something happening. You know, when you tell a theory, it's not like a, you know, like audio video. You, you know what I'm trying to say. Um, so let's tell some examples of, you know, where did you struggle? Gimme an example of, you know, here is this guy 10 years ago, three months ago, was trying to prepare for X, Y, Z, and, and, uh, this is what, what, this is how I was struggling and this is what happened, you know, when I was trying to just verbally speak to him versus, you know, like, like, I don't know, just help me understand. Like, I, I wanna understand because I'm not, I haven't, I'm not as good as you are in helping people prepare Right. Clients. So help me understand, you know, I wanna get in there and watch it with you, so to speak. I know this is an audio only medium, but if you tell me a story, I think I'll get it.

Sure. So where that client who went off the rails, who I described earlier, yeah. That was a case, uh, it's called a will contest. And in a will contest, uh, someone objects to a will that's been put into court to be probated, and they can object on various grounds. Uh, they can, they can for instance, argue that the will, uh, was the product of, uh, manipulation or what we call undue influence, or they can argue that the person who signed the will, uh, was not, uh, in their right mind when they signed it. They had some sort of limitation on their mental capacity that didn't allow them to understand really what they were doing. So this was a case in which I represented, uh, somebody who was a neighbor of the person who signed the will. Now this person died leaving no family, no surviving, uh, husband, no children, no siblings.

And she had signed a will, I think around 2007 or 2008, leaving the majority of her estate to my client, who I think he lived next door or across the street. And the will was changed about six months before her death. And instead she ch she changed the will to leave nearly all of her estate to another neighbor. So what you had, IIII call it neighbor on neighbor crime. And, uh, I had sat this gentleman down to prepare him for his deposition. And we spent, like I said, we spent about five hours together. Uh, and I went over as I do a dress rehearsal of the questions that I thought, uh, would be, uh, coming his way. And so when we went into the deposition, I thought, oh, well, he's so well prepared, he's gonna do great. But what did he do? Where did he go wrong?

Well, he started, he turned it into like an indictment of this neighbor who had been the, been left the sizable portion of the, the estate in the later will. So that he spent most of the deposition arguing with the attorney who was asking the questions. So he would go on and on about how, you know, she was a despicable person and she, uh, she, she was totally in it for the money and she had financial problems, and she took advantage of, uh, of, of the, uh, the person who signed the will, what we call the testator in, in legalese. And these were opinions and arguments that were completely volunteered. They, he, he wasn't asked questions that would cause him to, uh, render that testimony. And one of the, the fundamental rules of deposition testimony is you don't argue your case and you don't explain your position.

That's something that your lawyer does at trial, but you're only supposed to answer questions that are asked of you. And this guy, he took every opportunity he could, didn't answer any questions, yes or no, and started rambling all over the place. And it was like, it was like one big sermon on the mount. And as a result, he ended up volunteering a whole bunch of, uh, information that if he just complied with the the instructions, he wouldn't have volunteered it. So, uh, so now when I have, you know, when I, when I show these videos to people, they are much more compliant. And when they, when they go off the rails, and by the way, everybody does to one extent or another, but when they go off the rails, some of them say to me like, during a break, oh, I know that I wasn't supposed to do that in the video, it showed that, that, that I'm not supposed to explain. I'm not supposed to argue. I'm supposed to just sort of take a deep breath after each question and listen to it and think about it, and then answer it and answer only the question. And I saw the examples and yeah, I gotta do it better. I gotta do. That's, that's what we're trying to

That's awesome. So for the example you cited us is like when the person starts arguing, the, the, the, the, the jury or whoever's listening or judge, they get distracted, right? And they can't focus on your point of view, your, your argument. Am I making sense?

Well, I think, right? Yeah. So I think in a, in a deposition, your testimony is being taken down by the court reporter. It's not being rendered in front of a jury,

Alright? Right. But

What, what makes what makes a deposition challenging is that it is, it runs counter everything that we know about normal human conversation. So in normal human conversation, we are very quick to interrupt. Uh, particularly, you know, lawyers want to be sure that they get in the last word and, and, and they're always sort of hopping on the conversation frequently, cutting people off. And in a deposition, you're not supposed to do any of that. A deposition isn't even a conversation. It's what I call a managed dialogue. So you've got a court reporter who's taking down everything that's being said, and I liken it almost to a press conference that, uh, somebody, I mean, if, if you watch for instance, and this is not editorializing, but if you watch somebody in government hold a press conference, the, the ones who do it most effectively manage their words very carefully because of course everything they say is being taken down by, you know, hordes of reporters who are, uh, attending the, the particular event. So it, a deposition is really more like a press conference than a conversation. And so it's very difficult to take the principles of a deposition and to apply them and, and impress upon them to people who are used to, uh, conversational techniques and a conversational milieu that is 180 degrees different.

Makes sense, makes sense, makes sense. Can can we talk more about that? Can you give us some examples of where you have had successful depositions and, and tell me what happened in those cases?

Sure. So, um,

Like, like the best depositions you've ever had, like what was said, what was, what happened and why do you feel they went flawlessly and the best they can be?

Sure. Well, the best deposition I've had recently was in another will contest. Now, the, there's, there's, there's not a, a good way to control for this because I don't know the extent to which it influenced the course of the deposition, but my client was a retired member of the military, and as you and I know, military veterans tend to be regimented and disciplined, and they're quite easily able to focus. Uh, so his deposition really should have lasted about three hours. Normally, he got in and out of there in about 45 minutes because he literally answered every question, yes or no, if it called for a yes or no answer. He never departed one minute from yes or no. He was, he was challenging a will. On the grounds of that, his brother, uh, unduly influenced their mothers. And it, in that 45 minute period, the opposing lawyer got virtually nothing out of him.

Uh, you know, occasionally there was an open-ended question, but, uh, for the most part, he really didn't lay a glove on him. And ultimately, uh, we went to trial and he, this is, this is really quite amazing in a trial. I mean, if you've taken somebody's deposition prior to trial, that purpose of that deposition is in part to use the deposition against the witness. If their trial testimony differs from their deposition testimony, what happens is if the trial testimony is different from the deposition testimony, you, you approach the witness at the witness stand with the transcript of their deposition, and you basically say, well, your, you testified that the sky was, uh, was blue today, but you testified that it was, you know, overcast in your deposition and you're doing that to impeach and attack the witness's credibility. Not once in that trial, not once did the opposing attorney use the deposition to try to impeach my client. Uh, and in fact there was a point where I think he just took the transcript and he, he put it aside because he, he really had gotten virtually nothing from the deposition that he could use to impeach my client. And as a result, we ended up winning the case.

That's awesome. That's amazing. That's amazing. Now, you talked about a challenging situation and you talked about a successful, you know, example, the last one. Um, how would, how would, um, tell me about your experience. I know this new product you launched is brand new. How has this new product help? Like, how do you use it?

Sure. So I think we use it in two ways. Uh, and I can only, I I, the, the, the best use case that I have is my own use case. For others, their use cases may, may differ, but I use it, uh, for, for two purposes. One is obviously preparation. So when someone is being deposed, I have them watch the video, the deposition preparation video, or the trial preparation video twice. I then have them come in and meet with me, and then I have them watch the video again once just as sort of a refresher course when they come in to meet with me. Uh, I then, uh, do a dress rehearsal, uh, of, uh, cross examination if it's trial and just regular examination if it's the deposition. And what I'm doing is I'm trying to anticipate the questions, not, not every question, 'cause you can't anticipate every question, but trying to anticipate the line of questioning that's going to come from the opposing attorney and to, to be able to work my client as hard as I can to get them not only comfortable with the techniques for answering, but also to make them feel anxious because of course they're going to feel anxious when they're either sitting in the deposition chair or they're sitting on the witness stand at trial.

The second thing that I'm trying to do, I'm trying to make them comfortable with their surroundings, and that goes for all three videos. So, uh, in the trial video, for instance, we not only go over techniques for, uh, how to help the client testify on both direct and cross examination, but we also expose them to everything of consequence that's going to take place at the trial. So for instance, we have, uh, a little segment on how the jury is selected and how the client can help the lawyer pick the jury. We show how evidence is received, uh, we show objections and how the client needs to deal with objections. We show sidebar conferences where the attorneys meet over on the side away from the hearing of the jury to discuss questions of evidence with the judge. We show, uh, how the judge instructs the jury on the law.

We show, uh, an instance in which the jury has a question, and then we show how the jury delivers the verdict. We also explain the rules of all the persons in the courtroom, the judge, the clerk, the court officer, the jury, so that to the extent that the comfort of the surroundings leads the client to perform better, we, we control that. Uh, and again, like I said, it's much like meeting with the surgeon the night before, the day before surgery, and the pre-op meeting with the anesthesiologist and understanding how long the surgery's gonna be, uh, what it's gonna be like when you wake up, uh, how long you're going to be in pain, the pain meds you're gonna be put on, side effects, physical limitations going forward, because we're a helping profession. The idea here is let's make the client comfortable. If the client is more comfortable, presumably the client will be more confident and, and the, and the angst that they will, will feel will be reduced and allow them to perform better.

Now let me switch gears and let me talk about something different. Like you have been practicing for a long time. Um, what are some of the things you would tell a young attorney? Maybe somebody who's really trying to build a successful practice. I mean, assuming you are talking to your younger self, what would you tell him or her? Like, give me like five things you would tell him or her.

Sure. So I, i, I think the first thing would be to find a mentor, find somebody who you can tag along with the court, sit in a deposition with. Don't, don't go out into this crazy legal profession and legal world alone. Uh, and, and you know, if you, if you're starting your own practice, consider joining an incubator. Uh, the incubators, uh, are usually last for about 12 to 18 months and compare you up with somebody who is, um, uh, a a graduate of the same school you went to. You'll probably have technology available to you, um, for no additional charge. So that, so number one, fundamental. Number two, embrace technology. Understand that technology is a significant value added, and there's some things that are, you know, non, non-negotiable. And you should have, uh, as, as a foundation, you should have time and billing software you should have, if you're, if you're doing litigation, you should have case management software.

Uh, you should, uh, be storing your documents in the cloud so that clients can see them. And, and, and none of these require substantial financial investments. Number three is resist the urge to think that you need to be a generalist, because when you are, uh, try to be the jack of all trades, you end up being the master of none. What I've found is, as I've niched myself over the years, uh, to, to more narrow areas of practice, my practice has actually blossomed as a result. And now I'm, I'm known for doing about four different things, whereas maybe 10, 15 years ago I was doing, uh, things that were far, far broader and more extensive. When you get niched down, it, it, um, it results in you understanding what your, your network is and how to build up that network. And as you, um, as you get further and further into these narrow areas of practice, you can also immerse yourself more deeply in, uh, in the law and practice that that pertains to that particular practice.

And then would allow you to yourself involved in, uh, bar association work and or maybe CLE work that relates to those practice areas, which leads to my, to my fourth, uh, to do, uh, or fourth, uh, fourth must do, which would be to, uh, become a bar leader in those areas of practice. Uh, I can't tell you how many times over the years, uh, I have referred matters to people I didn't even know in a particular practice area, just based on the fact that they had given CLE talks or had written materials on it. So you, you, you suddenly become an expert, whether it's justified or not, by being on a CLE panel. Um, then the last thing, um, I would do is I would, um, I would definitely encourage people and, uh, to find meaning in their professional life by tying it into the meaning in their personal life.

Don't, uh, don't make, don't be so consumed with your professional life that it locks your worldview and prevents you from getting involved in things you really care about. So, uh, over the years, uh, I I've gotten involved in any number of activities outside my professional life, and that includes being involved in local politics. I've been on, uh, a number of boards. I'm actually a, uh, a big brother, uh, I have a, sorry, I have become a big brother for the second time, uh, in about 25 years. Uh, first time I became a big brother was while I was single. And now that we're empty nesters 25 years later, I've been matched up for two years with my second little brother who's now 14. And, and that gives me incredible meaning and purpose. I'm also on the board of directors of a legal services agency, and, uh, that feeds into my commitment for access to justice.

So there are so many en entry points, uh, for lawyers who want to get involved in the community. And it doesn't have to be legal related kinds of things, but whatever, whatever gives you meaning and purpose and what you, is something you should be doing, and, and the the business will flow from that. Actually, it is amazing. I never expected my charitable work and my civic work to lead to referrals and yet, and yet it's done. So, but I've never pined for it. I've never gone out and, and, uh, poached for it. Uh, I've always just been very sincere and authentic and passionate about the things I really care about, and the business has just flowed from there.

That's wonderful. That's great advice. What are some of the mistakes you made that you, you wish somebody had told you about? Like, what do you, what do you think some of the mistakes, the ones that maybe have affected, you know, like, you know, just you wish I knew this sooner?

Yeah. I, I can tell you the biggest mistake that I, the biggest regret I have is that, uh, I, I always thought that being a solo was the be all and end all, and I never ended up considering having a partner. I think that that ended up limiting my growth both financially and professionally. I think if I had to do it over again, I would love to have had like maybe one or two partners and have been able to build a firm around that. Uh, I also think that I probably should have been more, uh, out there in terms of networking. Um, I, I, I've chosen to sustain and build my practice with a lot of online marketing, although I do have any number of re referral sources, but, uh, I probably could have done a better job of just, uh, infiltrating networking groups and having more breakfast and lunches and going to more, you know, political fundraisers and, and just being out and about. Um, and I do, I feel that I suffered a, a tremendous loss because of it. No, but I think if I had to do it over again, I just would've been more aggressive in terms of sort of putting myself out there.

That's really good advice. If people wanna learn more about your practice, your, your startup, uh, you know, the company that helps other lawyers, uh, help their clients prepare, um, can you give us some links, some, uh, websites, some phone numbers, and of course we'll include all of this in the call notes.

Sure. So, uh, my practice website is lang.com. That's LAWF, like frank a n g.com. And the company website is empower legal.net, and the phone number is eight hundred five six three three eight nine seven eight hundred five six three three eight nine seven.

That's wonderful. I wanna thank you very much, uh, for your time today. And, uh, I wanna also thank our listeners for taking their time to, you know, listen to us. If you like the podcast, if you have any questions, you know, please reach out to either of us. Um, you can reach out to us through, um, you know, the website dominate law.com and, uh, we'll include all the, all the information you shared with us today. And, uh, and of course feel free to share this podcast on iTunes. Um, you know, just send somebody a link or, uh, share it on social media, Facebook, LinkedIn, you name it. We really appreciate it. Um, have a wonderful day, wishing you all a bigger life, a bigger future. And, uh, thank you for listening.

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