Step Three: Tell Us Everything
Now, put your Elevator Pitch spiral notebook away and pick up another one. On the top of the first page write, “Everything."
Start writing as if you are writing an outline but including prose when you remember details. Initially, you want to create the most salient facts regarding your relationship with the person (or people) on the other side of the lawsuit, and the facts that relate to the people who you assume will be on your side. Write down a fact and a date. Then skip three pages and write down another fact and a date so that you create an outline that looks something like below.
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[In this fictional scenario, John is suing you (a business owner) and your company.]
January 2013: Opened doors at ABC Software.
March 2014: Our company is growing like gangbusters. More business than we could handle. We're hiring like crazy. I meet John at a conference in San Francisco. We were both staying at the Hilton near Union Square. Over the next few weeks, we had several long telephone calls.
April 2014: I hire John as our assistant regional manager for the Southeast.
September 2014: John came to my office and told me he was angry that Sue Mathison got the regional manager promotion, instead of him. I was sitting at my desk eating my lunch — Chinese food. Moo shu pork. I remember because he walked into my office and said, “I need to talk to you." And I said, “Absolutely, but I'd like to finish my lunch first." And he just started talking as if I hadn't said anything. That just struck me as really rude, and my first thought was that I was happy I gave Sue the job instead of him.
- [Note the details, “Chinese food. Moo shu pork." These kinds of details are important and add credibility to your testimony. Also, note the phrase, "that struck me as really rude." Rude is a powerful word, what I call an Emotional Core word. No one likes or admires rude people. But also note that you are not saying that John was a jerk or an ass, just that this behavior was rude. You are commenting on his behavior and allowing a judge and/or jurors to come to the conclusion that John is a jerk on their own.]
October 2014: When I was in Scotland on vacation, John fired Mary Ross and Emily Prager. When I returned, I rehired Emily and moved her to another department, but Mary had taken another job.
November 2014: John submits over $7,000 in travel related expenses for October. His normal monthly expenses averaged less than $1,000.
December 2014: John submits huge travel expenses again for November. I refuse to reimburse him for about 80% of those expenses.
January 2015: I promoted Katherine Parker to Executive V.P. of Sales. John comes to my office. He's furious, yelling and cursing. My assistant, Kim comes into the office when she hears John yelling. He turns and yells and curses at her. I fire him on the spot, walk him to his office and give him an hour to gather his things. Jim Menton and Kyle Roberts escort him out.
February 2015: John sues me, the company, and several staff members.
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Each one of these dated entries should be on a separate page. Now you need to go back to those three skipped pages and start making notes of details regarding all your interactions with John. Write down everything you can remember. Don't separate what you perceive to be wheat or chaff. That's your lawyer's job. What you may think is pure dynamite, your lawyer may see as a firecracker without a fuse, and vice versa.
Make notes on your 3 x 5 cards of every encounter you remember that had any significance at all. Use the red cards to make notes of the things that were warning flags for you —things you may have ignored or just let pass. The red cards are for the, let's call them, “bad" things John did, that you or your employees, co-workers, family or friends can remember. [But don't talk to anyone about your case unless you have your lawyer's permission to do so.] Use one card for each incident or recollection. If you can recall the dates, put the dates on the cards. If you don't, don't worry about that now. You can put them in chronological order later. The point now is to get everything out.
Now the green cards are for the “good" things that John did that were significant. We want to make notes about the good things John did too. We want to know about the good qualities he exhibited that led you to hire him in the first place and the positive things he did while employed at your company. Too many lawyers and clients do everything they can do to trash the opposing client in every way possible. In most cases, this is a terrible idea. Nobody likes petty, nasty clients or witnesses who can find no redeeming qualities in the person who has sued them or whom they are suing.
Additionally, the opposing lawyers are going to paint John as the perfect employee, a deacon in his church, a man who volunteers his time at homeless shelters and rescues puppies. Your judge and/or some jury members may believe that John is a great guy who you constantly overlooked in favor of your female employees, or some may believe that John is just a jealous hot-head. But if your lawyer spends a whole lot of time trashing him and never says a kind word about him, and if you and your witnesses do the same during testimony in depositions or court, that harms rather than aids your cause. If your judge or jury members emotionally view John in a positive light before the trial even starts, every time someone on your side trashes him, your judge or jury members will be pushed closer to him. (This concept is explained thoroughly in our online video course as the Nature/Nurture Elements of Instinctual Trust.)
Now turn your searing gaze upon yourself. Take the yellow stack of 3 x 5 cards and start making notes of every incident in which you behaved badly or made decisions that in the harsh light of litigation could weaken your position, or simply make you look bad in some way. Your lawyer needs to know everything if he or she is going to help you prevail. I can’t tell you how many times I’ve heard a lawyer tell me, “The best a case ever looks, is the first time a client tells me what happened. And the more I learn about the case and my client, the worse the case looks.”
I know, I know, leading up to this lawsuit you did some things that you aren't too proud of. You lost your temper that day. You should never have sent that email. You wish you had read that contract more carefully. That thing you said at the board meeting or the office party sounds pretty foolish now. Why did you let so many things go instead of dealing with them when you should have? Yeah, you really should have paid closer attention to what your managers were doing instead of just assuming everything was going to work out right. And, well, yes, those Super Bowl tickets and the related expenses were things that you should have paid for — not the company.
We all do stupid things. Now is the time for you to admit — on paper and then later to your lawyer — all the stupid, rude or negligent things you said or did to anybody related to your lawsuit. If it’s business litigation, be sure to note interactions with employees who’ve left the company or were fired. Opposing counsel will want to talk to anyone who may have grievances against you or your company and anyone with whom you’ve had negative interactions. Write each boneheaded, rude or angry thing you said or did on a different yellow card.
All too often, clients aren't completely forthcoming with their lawyers about things they are embarrassed about. Over and over I’ve seen lawyers walk out of depositions, mediations, arbitrations and trials, and turn to their clients and ask, “Why didn't you ever tell me about ____?" (Fill in the blank with some embarrassing or foolish act). Don't make this mistake and don't think you will “get away" with your lawyer or opposing counsel never finding out about things you've done that you aren't proud of. We all leave trails that lead to our misdeeds: people who saw or heard things; documents, emails, text and telephone records; and receipts or records you thought you hid by burying them in other bills (like those for disposable or prepaid phones). Have your lawyer explain the Discovery Process and how easy it often is to uncover things that you assumed you hid properly.
Tell your lawyer everything — the good, the bad and the ugly — before the deposition or trial, so that she can strategize about how to deal with it. If you don’t and she gets blindsided during your trial, get ready to write a bigger check to your opponent when you lose.
IDENTIFY THE ACTORS
Your lawyer will need to know the names of everyone who may be involved in your legal matter and everyone who may have knowledge either helpful or harmful to your case. This is so that: (1) He can decide whom he might want to call to testify on your behalf; (2) He can decide whom (among those who will be willing to testify against you) he may want to depose prior to an arbitration or trial — or at least be prepared for any testimony that may be damaging to your case; (3) He will have the names of people who have knowledge of the facts in your case, even if you are not completely sure whether they would testify for or against you.
A WARNING
Before we get into the specifics of what kind of information your lawyer will want to know about these three different categories of people, I need to warn you about what happens to people who are confronted with the possibility of testifying in a deposition or in a trial. The very idea of it makes people crazy, scared, angry, thrilled, excited, elated, depressed, despondent, aggressive, combative or supportive and energized … or any or all of these emotional states at various times. Here’s the deal: as hard as it is to believe, there is absolutely no way you will know how someone is going to respond to your or your lawyer’s request for them to testify on your behalf until they are asked to do so.
I’ve worked with employers who were absolutely positive that certain employees would testify on their behalf. These were employees who had worked for the employers for years, with whom they also had close personal relationships. Yet the employees refused to testify. On a more personal level, I was once the plaintiff in a lawsuit and asked my closest friend — of thirty-five years — to testify to some simple factual issues. He refused to testify. The idea scared him to death.
Lawsuits make people crazy. Try not to be too disheartened when people close to you refuse to help at a time when you truly need help. This is especially true in divorce litigation. In the song “Her Town Too,” James Taylor sang “Seems like even her old girlfriends might be talking her down … she always figured that they were her friends, but maybe they can live without her.” Get ready to be surprised, shocked, disappointed or hurt. In all likelihood, you’ll feel one or more of these emotions about a friend, family member or loved one who refuses to testify on your behalf.
COMPILING DATA ON PERSONS OF INTEREST
Even if you are involved in litigation in which there are a small number of actors (people), your lawyer will want you to identify and classify them to the best of your ability. Your lawyer will also want as much information as possible on both the principal and minor players.
If you are involved in complex commercial litigation, there may be a dozen or potentially dozens of actors who may be called to testify or may have information that will help or hurt your case. You may think you can quickly name your cast list, but the more you focus on everyone who may have encountered the principal players, the more your list will grow.
The names and information you put on the forms on the following pages will be invaluable to your lawyer and legal team. And if you do this initial work on your own — rather than in conjunction with your lawyer — you will save yourself hundreds, thousands, or even tens of thousands of dollars.
On the following pages, you will see four different forms that identify three different types of actors (people) playing different roles in your drama (lawsuit). Essentially, your lawyer will want to know: (1) Who you feel will be willing to testify on your behalf (For Our Side); (2) Who you think will likely testify against you or your company (Against Our Side); (3) Who you are not yet sure of (Might Be On Our Side). On the fourth form, the Group Form, you’ll list ALL the names from these three categories.
The sample forms on the following pages are smaller than their actual size. You'll find blank versions of the full-size forms by entering this address in your browser:
tinyurl.com/jurisperfect-forms
Your lawyer and her team will need to be able to read your writing. Make sure you write in legible cursive or print.
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You will want to keep all of the Individual Page Forms together in three different manila folders labeled “FOR OUR SIDE,” “AGAINST OUR SIDE,” and “MIGHT BE ON OUR SIDE.”
After you’ve created and filled out the Individual Page Forms, then print out the Group Form below and transcribe the names from the Individual Page Forms to the Group Form.
You can fill out the Individual Page Forms in pen, but you should fill out the Group Forms in pencil. Why? Well, maybe you need to reread the paragraphs above under “A WARNING.” You use pencil on the Group Forms, because — unless you are extremely lucky — in the weeks, months and potentially years between the time the lawsuit was filed and the time it concludes, you’ll be erasing some of the names from the green column above and moving them into the red or purple column.
You will be giving all the Individual Page Forms and the Group Forms to your lawyer. He will make copies of them so you both have copies. In the upper left hand corner of the Group Form (or forms), put a date — in pencil. When you add names to the Group Form, when you move people from one column to another or when you simply remove that person, erase the date and put the new date. This is important because you always want to make sure you and your lawyer are referring to the same lists and focusing on all the same people.
You’re not just listing people who may testify. You’re identifying both the people who have a great deal of knowledge about your case and/or the circumstances around it, as well as the people who may have limited information. Who will actually be called to testify will be your lawyer’s decision — not yours. And who she decides to subpoena to testify in a deposition, arbitration or trial will also be her decision — not yours. You may think that your sister would be a great witness for you because she loves you so much, but if your lawyer doesn’t want her to testify, don’t push it. You are paying for your lawyer's knowledge, expertise and judgment ... so get your money’s worth by taking her advice.
Again, you won’t only be creating Individual Page Forms for people who have a great deal of knowledge about the facts. You will also create Individual Page Forms for people who may know very little. In your lawyer’s opinion, what they know may be significant. For example, in a divorce case, you had a neighbor who only witnessed one argument between you and your husband, but it was frightening. Or in a business litigation, you had a temporary employee who only worked for your company for one day, but on that particular day, he signed for a document that was delivered by registered mail. If the receipt of that document on that day is important to your case, then your lawyer may have that temporary employee testify to that during the trial. Sometimes seemingly unimportant witnesses can be extremely valuable.
Congratulations. By completing these forms, you just saved yourself hundreds or thousands of dollars that you would have spent in your lawyer’s office telling him about all the people who may either help you prevail and those who may prevent you from prevailing. But your work with these forms is not done. You will continue to update them until your litigation issues are resolved.
One last step: Put your Individual Page Forms in order, within each manila folder, from most important to least important to your case. You want to be able to discuss these forms and these people with your lawyer in the most efficient way possible. That will save you money in legal fees.
NOW THAT YOU’VE DONE YOUR WITNESS OR PERSON OF INTEREST HOMEWORK ... GO TALK TO THE TEACHER
Set an appointment with your lawyer to discuss the people on your lists and why you feel they are important. Your lawyer may want you to speak with some of them. They may remember things that could help your lawyer in preparation for your litigation. But before you speak to anyone, read the warnings below and those in Step Number Seven about speaking with anyone about your case.
There are three things that we know about your memory: (1) It’s not as good as you think it is. (2) Time and circumstances have altered your memories. (3) Time and circumstances have, in most cases, altered your memories in your favor.
Consequently, in addition to your memory, your lawyer will quite likely also construct his case relying on the memories of some of those people on your lists. They may recall details, dates, times, physical evidence, emails, text messages, telephone or in-person conversations regarding the facts. It is quite likely that there are people on your lists who will want to help you in any way possible; however, their memories of specific facts may be different from the way you remember those facts. Those things need to be sorted out as quickly as possible to enable your lawyer to prepare the soundest case possible.
However, DO NOT TALK TO ANYONE ON ANY OF YOUR LISTS UNTIL YOU HAVE CLEARED THAT WITH YOUR LAWYER. If he or she encourages you to have conversations with friends or co-workers to gather information, then do so. BUT DO SO WITH CAUTION. Just assume that almost anything and everything you say to someone about the facts in your case may be revealed during litigation. When a witness is testifying on your behalf, remember that opposing counsel will do everything in her power to dig information out of that witness that is unfavorable to you. Some of the most damaging testimony I’ve ever heard has come from witnesses who were taking the stand to help a client, but instead severely damaged the client they intended to help. Another reason to be extremely careful about your conversations with people who will potentially testify, is that prior to litigation taking place, circumstances may occur that cause people who were previously loyal to you to switch sides. It happens.
I don’t say this to make you distrust your friends, family members or coworkers, or suddenly assume that everyone is out to get you. Lawyers are accustomed to the stresses that lawsuits produce; ordinary citizens are not, and stress makes people unpredictable. So — again — don’t be surprised if someone who you were absolutely sure you could count on, turns out to be someone you can’t.
Years ago, I was commissioned to write a play for a high school. In the play, A Small Circle of Fire, a sixteen-year-old girl, Marsha, gets pregnant and is shunned by most of her friends. But surprisingly, she is comforted by Jeannie, a classmate who Marsha had never been friendly toward. Marsha is sitting on a bench tearfully telling Jeannie about her old friends deserting her. Jeannie says, “Well, Marsha, friendships are kinda’ like rocket ships. No matter how much time and effort you put into building them, you never really know if they’re gonna’ work until they’re tested. And there’s no way to test ‘em without a big explosion.”
Lawsuits are big emotional explosions.