Client Performance: Lessons from the Playing Field

Imagine the following scenario: Your client is about to be deposed in a case in which significant damages are at stake.  Knowing what hangs in the balance, you spent hours preparing the client; this involves both an extensive review of the likely areas of inquiry, followed by a mock deposition in which you ask questions which, both in tone and content, resemble the questions that are likely to be asked at the deposition itself.

The client answers your questions concisely and clearly.   You conclude the meeting feeling confident that he will perform at a high level once he has to answer questions for real the next day.

The client appears for his deposition and begins to answer the questions.  His answers are not only rambling and inconsistent,  but also include the volunteering of facts that severely damage the case.  Even the extensive “pep talk” you give during the lunch break is not effective at curbing the client’s poor performance.

You leave the deposition exasperated. As you drive back to your office, your mind is consumed with one singular thought: “How could that happen given all of the time I put in to prepare him?”

Why Do Some People Perform Better Under Stress Than Others?

In Boston,  where I live, David Ortiz stands taller than just about any athlete who has ever put on the uniform of a local professional sports franchise.   His 14-year career with the Boston Red Sox is replete with moments in which he came up big in pressure situations.  By his own admission he relished the pressure situation in which he was called upon to do nearly the impossible to secure a comeback win.

Contrast Ortiz’s heroics with the tribulations of Blair Walsh, then the placekicker of the Minnesota Vikings, who was called upon to kick a 27-yard “chip shot” field goal in the final seconds of a wild card game against the Seattle Seahawks in 2016.  With the game and a trip to the divisional round on the line, Walsh, who had been as reliable as any kicker during the regular season, missed the kick.

So why, in these high-tension settings, did Ortiz succeed and Walsh fail?  And why do some litigants shine and others, such as the client described above, fall flat on their face at deposition, arbitration or trial?

In order to understand the answer to this oft-perplexing question,  it is necessary to embrace the proposition that when it comes to effective performance in major litigation events, not all clients are created equal.  Research by academics has posited a host of variables that affect performance in tense situations. Some clients are naturally anxious, in many instances by reason of previous life events, or in other instances by cognitive or intellectual deficits.   Others have ice water for veins and are impervious to pressure; they follow instructions to the letter.     (Active and retired members of the military fit this profile).  Those who are natural optimists tend to perform better than those who have a pessimistic outlook.    Genetics, too, play a role;   people have varying degrees of neuropeptide, which are small molecules that are secreted from neuronal cells in the brain.  Studies have found a positive relationship between neuropeptide levels and the brain’s ability to respond to stress.

Where Does Your Client Fall on the Continuum of Anxiety?

Your preparation of a client should thus begin with some placement of the client on what I would call a continuum of anxiety. This involves gauging the client’s fears and apprehension about what lay ahead by not only learning as much about the client’s background, but by also asking the client directly if he or she is anxious or scared about testifying.

The place where the client falls on the continuum should also dictate both the nature and quantity of your preparation.   An appropriate first step in substantive preparation is to introduce the event—whether it be deposition, arbitration or trial—at a 30,000-foot level.  This would involve explaining generally what is to take place, what counsel’s role will be at the event, and how the preparation process will unfold.

We do a significant disservice to our clients if we act as if these events will not be anxiety-provoking for them.    There’s nothing wrong with saying “You might feel anxious at times while this is happening, and that’s OK.      If you’re focused on the task at hand, you’ll do just fine, even if you’re a little anxious.”  At the same time there’s no substitute for trying to simulate that anxiety through a vigorous mock deposition or cross exam.  Better that the client actually experience some of the tension in advance rather than have it infect them for the first time on the date of the event.

Preparing Well in Advance

Because an assessment of the client’s anxiety or fear quotient may necessitate some extensive remedial measures,  your preparation should be begin well in advance of the deposition, trial or arbitration date.  This will allow you time to introduce measures that can relieve or at least reduce the client’s anxiety.  Examples of such measures include mindfulness exercises, meditation, yoga, or a heightened exercise regimen.  While I recognize that these techniques might not work for some—or may be seen as cheesy or unnecessary by others—they should at least have their place on the preparation “menu”.

Research has shown that when people focus on the process itself and not the results of consequences of that result, they tend to perform better.  In this regard,  your preparation can be valuable if you can persuade the client to simply focus on what they have been instructed to do.  During my years of practice I always advised my clients to let me worry about how the answers would impact on the case.  Too many cases have gone off the rails from the client’s obsession with testifying in a manner that he or she believes will please counsel or enhance their position.

Reducing Anxiety through Environmental Acclimation

Finally,  the client’s anxiety can be reduced dramatically by making them feel comfortable with the environment in which the event will take place.   There’s nothing wrong with taking a drive to the courthouse and courtroom where the case will be tried, or seeing how a deposition room is set up.  If this is inconvenient or otherwise not feasible, the client can view a video that contains a realistic depiction of a trial or deposition.

To be sure, even the implementation of every reasonable preparatory measure is no guarantee that the client will perform at a high level.   After all, how many of us haven’t had our own “Blair Walsh” moment or episode?  And while our clients can reveal much about themselves,  we’re not in a position to determine whether they have a low, average or high level of neuropeptide in their brain.  All we can do as practitioners is to take all reasonable measures to reduce the risk of poor client performance due to anxiety.

Alan S. Fanger, a Litigation Section member, is a sole practitioner and the founder and CEO of EmpowerLegal, Inc., a Boston area company that provides an e-learning platform to assist clients in preparing for major litigation events.  He may be reached at alan@empowerlegal.net.