WINNING ARGUMENTS I USE

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(THIS IS NOT LEGAL ADVICE. PLEASE READ THE DISCLAIMER  BELOW) 

I am a couple of months into the case and the first Pre-trial or just been awarded discovery when Midland Funding files the Motion for Summary to end it early. What do I do?  This is a common scenerio with Midland who try to end the case before the Defendant has a chance to do discovery on the Plaintiff's case. Remember: Midland's philosophy is the same as any other debt collector. They enjoy about a 90% default rate. They file just enough papers with a weak lawsuit to make out a case while expecting the consumer not to Answer. See the Harvey Rule as to why they do this.    In 21 days, they have the default for the money number in the complaint and the proof is a secondary concern. For Midland or any other collector, this is all about getting the default before anyone looks into the complaint they filed. 

Here is what I do with the Summary Motion:  I read their motion several times before doing anything else. The more I read it, the more I see. I recognize patterns and weaknesses. There are many with the usual template motions Midland's attorneys file. As I read the motion I make notes on the side of the sentences I disagree with or seem false. First feelings or impressions should be respected at this stage. My notes then form the basis of my arguments around the case theme from the Answer and Counter-Claim.  When I am done with the reading and note taking I have now created my outline for the Response Brief. I probably know Midland's Motion better than the attorney that signed it at this point and I have my outline. Then, I fill in the blanks with the answers to the questions, holes in their logic or false information and I have the makings of a rough draft Response. A Rough Draft or a Response puts you 50% of the way to finishing. The rest is filling the legal gaps with appropriate cases and rules. See my Free Resources Section for help.

I stick to my Theme and Message to the Court: Again, the Response Brief and Argument should mirror each other and  be part of a theme you introduced from the very beginning with your Answer. The Answer, Counter-Claim and now the Response Brief should tell the same tale. In Oral Argument in Court, the best theme argues your case or states your position in thirty seconds or less. You have to set the tone. It is very possible the Judge won't hear anything else I say so I keep repeating my buzz words that state the position of my client: "He may owe the debt but he does not owe it to Midland etc." 

One of my favorite themes when facing a Judge who believes you or your client owe "a debt" so therefore "you owe the debt to Midland" (the two are mutually exclusive but there are many judges that don't share this belief) is one that reminds the Court that, while the debtor may owe the debt, she does not owe the debt to Midland.  Then I expound upon the lack of proof, lack of assignments or poor chain of title.  None of any Midland cases that I have litigated ever have the right amount of proof or ownership paperwork. They literally paid pennies for the debt-that does not come with any extras from the seller, like proof or the debtor's paperwork. 

The main basis of Midland's proof false proof of assignment will be the Field Data Sheet. This has personal information of the debtor like address, last four of the social security, charge off date and last payment date among other things. Midland tells the court that this proves that they own the debt. My defense is that, first and foremost, it is hearsay usually has the wrong information on it. Look at the bottom of any Field Data Sheet from Midland. It is not created by Midland but by the seller of the debt. See Data Sheet below presented by Midland but created with third-party information and hearsay. Sometimes, that Data Sheet is from a third or fourth owner of the debt. So, it is not a good piece of evidence for Midland to rely upon. Does not stop them from using it but it has no evidentiary value. Some times I will photo shop differant numbers or put Mickey Mouse's name where my client was and then present this to the court. They get pissed right before they realize how easy it is to create and falsify by the other side too. They sometimes stay pissed because generally, the court wants to rule for Midland and be done with case and they relay upon the data sheet too. Remember, in my experience it is  the debtor against Midland and the judge in these cases. 

Unfortunately, Courts give great deference to the side that has a lot of papers attached to their pleadings as though weight makes ownership. My job is to show the court that their Midland's Bill of Sale and Assignments (self titled by Midland and the other debt buyers so they can say it proves an assignment when there is no assignment attached) does not reference the specific debt. It  never does. They will reference things that prove you used the card or debt (The Affidavit will say it references electronic records) but you or the Court will never see the specific proof. But remember, my message in my first contact with the court from my Answer to all the way to Trial if that happens is:There is no proof Midland owns the debt. See the section on Answers and Counter-Claims. Again, do your own work as my stuff is not your case. Review Michael Bassett's Section.

I have created some Potential Midland Arguments vs. Potential Responses for use in court or in my Response Brief in the Downloads below.

I recently heard a Court of Appeals Judge stop an attorney during her oral presentation. The attorney was reciting her Brief and the court had initially advised all of the attorneys in attendance not to repeat their Briefs.  He looked at the attorney and everyone in attendance and shouted,  "Just tell us why you are going to win." At that level, the Court has read everything and your oral argument should be very short. But those are great words of wisdom at the Trial Court level and should be remembered in creating a summary argument. "Why I am going to win" should be the first words stated in your Brief and in Oral Argument. Before the Judge dozes off. 

Remember, ABC-Always Be Closing. Every appearance I make I set the seeds for the next appearance while stating the same theme or message. I counsel new attorneys that their current motion should also be about your next appearance in front of the judge. Always be closing with why you will win the case. Tell the Court why your case is a winner no matter why you are before the court. As they say in politics, Stay on Message-  Every motion, witness list, exhibit list and certainly, any Pre-trial I attend I remind the Court of my position or defense.

Midland files hundreds of thousands of the same complaints with nothing more than sales documents and a weak affidavit. The Courts have been programmed like zombies to accept this as "proof" and "evidence" usually to support a default. Case done and off the trial docket is all the Judge hears.  As a debt collector, Midland is banking on 85% to 90% of Debtors not showing up to Court. The Judge sees the same thing everyday:A weak complaint with false evidence being sufficient proof to support a judgment for Midland. I stay on message and try to change the culture and the "cult."

Remember, ABL-Always Be Listening.  Okay, so there is no such thing as an ABL. But, there should be. Judges are human. You should tell them why you are going to win but it is also important to listen too. They will tell you why they have a problem with your case or how to win- if you listen. It is common for courts to litigate their beliefs in a simple Pre-trial confernce and ask you about the case and say, "But didn't your client use the card or took the credit and did not pay it back etc. (depending on your facts)." The Judge is telling you at that point what she needs you to prove to win the case.  There are plenty of judges that will listen if you listen to them. Always show the Court Respect by listening more than talking.

To avoid bias for Midland, some judges set the bar higher for debtor defenses than others judges depending on their own bias, life experiences or wealth. The wealth of the area or district they live in is a factor too. I remember a collection trial I had in the middle of the financial crisis in 2010 where I asked the jury for a show of hands as to how many people had had a debt collector call them. The district was one of Michigan's wealthiest. No one raised their hand. A couple of weeks later in another trial ten miles away, I asked the question in a similar case but in a poorer district. Everyone, including people in the jury pool raised their hands. And the Judge's rulings in each case reflected that geographic and economic bias.  That bias for against you will effect what the judge will allow in as evidence.  Tip: know the State 803(6) Business Records Exception Rule better than the judge. But be respectful about it. 

Again, I create a Theme and a Message in my Answer. The Answer I create today should be my Summary Motion or Opening Statement tomorrow. I now attach both Bassett Rule cases to the pleadings to educate the court on my case and a real case under similar facts against Midland. It also supports my counter-claim that the debtor was sued by Midland without any proof. It is likely that the judge sees the same Midland attorneys and same cases (and  defaults) with no counter arguments. There are judges that welcome counter-arguments against the Midland Machine. But, you have to educate the court when they are not so open to your side.    That theme travels with you in every appearance so, say it loud, say it often.  Further down the road when you face a major obstacle like Midland's Summary Motion, the judge is not hearing your theory for the first time.  See my point/counter point list of arguments as a reference for my  response motion to the Summary. I have also attached Briefs for you to review so you don't have to go find them online.  

I always have my 30 Second Round Up of my theory. I tell the Court why I will win. "Here is why I will win this case your honor" and then say: Judge, this is an "assignment case" and they are missing a SPECIFIC assignment with my client's name and and account number." Or "this is a missing assignment case" or "bad chain of title case" and there is missing link in the chain of title. Short, powerful statements resonate and are remembered. See any election.  In every Midland case I have done usually all three of those themes works. Sure, the best thing to be able to say is that you never signed up for the debt.  But again, the Burden of Proof is supposed to be on Midland, the company that sued you.   

(REMEMBER, NONE OF THIS IS LEGAL ADVICE. THIS IS HOW I DO THINGS IN MY CASES)

Here is a link that explains how to Answer a Lawsuit in Michigan. Seeking a jury trial is sometimes a good idea if you suspect the court may not be as open to your ideas as she is to Midland weak pleadings. Judges can still have an influence but at least the final outcome is from "your real peers."  

I am attaching forms I developed for my clients so that you can view them to develop your own case theme. Don't copy mine as yours have to be yours. These are examples. You also need a Counter-Affidavit. Here are some points to develop:

1. Midland has to show proof that they own your SPECIFIC debt with your name and account number on an assignment between a previous owner and Midland. In my humble experience  this assignment does not exist. They provide Bills of Sales and Assignment paperwork but they show nothing specific to the person they are suing. They pay pennies on the dollar for these giant pools of debts and it would cost tons more to have proper assignment paperwork on every debt. See the Bill of Sale Download below for some examples of the kind of paperwork Midland will attach to a complaint or discovery responses. You won't see a specific debtor name or account number.
2. A Counter-Affidavit supporting your defense that the client has reviewed Midland's lawsuit and exhibits and they have no assignment or proof of ownership is necessary for your defense and show the judge you don't owe Midland. Midland's law firm loads up their complaint with a ton of information that is completely irrelevant. They do this as a substitute for substance. The first 5 paragraphs have nothing to do with the case. See the download below of that awful complaint and an example of an Answer pointing out their bs. Yet, the Judge commonly sees a lot of paperwork and talks herself into ruling for the side with the most dead trees.  I make my Answer and other pleadings stand out with tabs, different color paper or even create a personal bio of the debtor and why you don't owe Midland. You have to shape yourself as more than a faceless victim judges routinely rule against without knowing who the victim is. It is just a numbers game. 
3. The two Michigan Court of Appeals cases in  Midland Funding, LLC v Michael Bassett, are a powerful confirmation of what I have been arguing for years: If there is No Specific Debtor assignment, then no Midland lawsuit. Review Bassett and the Wisconsin equivalent at Gemini Capital, LLC  v Leroy Jones, 904 N.W. 2d 131 (October 2017)  in my Opinion section. Also, Mr. Bassett has written his personal four year journey against Midland Funding where he won two Court of Appeals cases on his own as a Pro Per against astronomical odds.  This should be inspiration in your own case.

The important point to remember is that Midland rarely has the proof to go to trial so they rely upon the Midland Affidavit (see Section analysing their Affidavits) and the Harvey Rule.   

In Harvey v. Great Seneca Financial Corp., 453 F.3d 324 (6th Cir. 2006), Ms. Harvey alleged that the debt collector, Seneca did not have the means to prove a lawsuit at the time of filing instead throughout the litigation and lost at the Trial Court and on Appeal because she failed to allege that the debt collector was incapable of ever obtaining the proper paperwork. Midland files a collection lawsuit “without the means of ever being able to obtain sufficient proof of the debt-collection action.” The Harvey Rule requires the litigant to plead facts alleging the debt collector never had the means to prove its case and could not obtain them.  So, that is in my Answer and I try to make that very clear also in my counter-claim. 

Debt collectors like Mildand believe they can file a lawsuit under weak proof and when you call them on it, they say they plan to eventually show the right proof under Harvey.  In their Summary Motions, Midland will accuse the debtor of not alleging that Midland can never prove their case in the Answer and Counter Claim and use Harvey against the debtor.  Besides, Midland believes that their Affidavit provides the Court all the proof necessary to show they have the right to sue you. The Judge will accept it as gospel  if you don't Answer with a good defense with your own Counter-Affidavit under the Harvey Rule.  In Michigan, see also MCL 600.2145 to properly counter their affidavit.

Unfortunately, you have to go in assuming the Judge is not on your side. She will try to get you to admit you owe the debt. She will care little about the proof that Midland offers. Later, when ruling against you she will use your admission to back up her decision and ignore the real issue of Midland's lack of Assignment Proof.  The question of whether the debtor owes the debt is irrelevant to the theme here: Midland has the Burden of Proof. You aren't required to prove anything.  

Generally, Judges want to rule against you in these cases. I answer the question as to whether the debtor owes the debt the following way: "Very respectfully, as your honor knows, whether I owe the debt is irrelevant. Midland has the Burden of Proof here and they have failed to show they own the debt. All they have is this Minnesota Affidavit for a Michigan resident and no proof they own anything."   Again, check out my Answers and Affidavits section for review and research but not to copy. 

Know your case, know their case and know as much about the deponent as you can. Know the rules on 803(6). If you read the Affidavit a couple of times you notice the thing is written by their legal department with buzz words so it sounds like the business records exception to hearsay.  I have seen many lazy judges quote the buzz words around personal knowledge and let it in. It is your job to question the person that signed it and make her explain the document to you. That's is what my guideline will help you do. It will also create a record for the Judge to hang her hat on and go your way.  Here is a guideline to the deposition of the Affiant or Legal Specialist for Midland who signs the MCM Affidavit.  

I will soon be attaching videos on how I fight Midland Funding. 

For Midland and the average Debt Collector, It is all about the Default! Once you Answer the lawsuit you weaken Midland's case and ability to go after your bank accounts right away. The whole system and machine is focused on the cost savings of defaulting the debtor. There is little care put into the complaint or exhibits as a Default wins the case early and saves the machine a lot of money. Once an Answer is filed, now the law firm has to spend money and deal with the Court. This may produce an early dismissal of the case against you. So, don't let them Default you.

WATCH OUT FOR THIS: A debtor is sued for a debt she may or may not owe. The debtor believes they can't afford litigation and reaches out to the collector or collector law firm for help and a payment plan. (See, chicken seeking help from the fox). The payment plan is quickly agreed to by the collector without a word about the lawsuit. 21 days later and even though the collector agreed to work it out with the unsophisticated debtor, the law firm takes a default.  Now, the payment plan is history and law firm wants the whole thing. What happened? 

As was stated above, the goal of the debt collector law firm is to get a default. The payment plan arrangement is to keep the debtor from getting an attorney and to forget about the 21 days. It is all about the default and subsequent Judgment.  There is more money for the collector with the interest, fees, lawyer costs, and other things associated with collecting a Judgment that can be renewed again ten years later. That's twenty years of added costs, fees, interest etc and at high interest rates.  To a debt collector, a Judgement is an annuity and the gift that keeps on giving. With already tight margins, in  most cases there is no money to be made by a collection law firm that has to litigate a debt. The sooner they get the default, the sooner the collector stops spending money on the file and starts collecting.  It is why I have attached a form from the Detroit News on how to Answer the lawsuit.  If you receive a legal notice that you’re being sued over a debt, file an Answer. You don’t need to be an attorney, and you can get the appropriate legal form online from your state court system, or contact your local clerk of the court for help. Michigan residents can find their appropriate form to even the playing field here. Once the Answer is filed, the firepower and Default power of the collector is immediately muted. The debtor now has the power to litigate and to negotiate from an even playing field. Most cases are settled at the courthouse and at the Pre-trial stage where the collector firm will want to cut its costs and offer a better deal. A Default takes away the bargaining power of the debtor. The Answer improves the odds of a better deal and of the case going away with a dismissal. Just make sure the dismissal is with prejudice. W/O prejudice leaves open the possibility of being sued again for the same debt.  

Debt Buyer vs. Debt Servicer (collector). For settlement purposes, there are two types of collectors. Those that work directly for the original creditor and those that own the debt. Those that "service" the debt work directly for their client, Ford Credit, Visa, Discover, Citibank etc. They have little settlement power, usually the debt goes away for a 75% lump sum payment or 80% on a monthly payment plan.  I can usually do a little better if the collector is sick of me suing them but they are on a short leash from their client and their margins are thin.

The best collector to deal with is where the debt is owned by the collector and "servicing" their own debt.A debt buyer (owner) is Midland Funding, a Cavalry SPV I or a Crown Asset Managment for example. They are really just computers whose debts are being serviced by others. But the debt was purchased for pennies on the dollar and sometimes can be completely eliminated under the right conditions. The goal of Midland here again is to get the Default Judgment and the twenty year annuity. Your goal is to eliminate the debt the computer clearly never owned in the first place. Just arm yourself accordingly. Hopefully this website and Mr. Bassett's story helps you. 

When I somehow get through the objections of the Judge and the last minute motions to block me and I get the right to the deposition of a "Legal Specialist" or corporate officer of Midland the case takes a very positive turn. Separate from the Court Rules on how you must conduct the deposition, there are no rules against being creative with how you depose a witness. The two biggest skills I have are my constant curiousity as to why people do what the do and I try to be totally prepared for every possible outcome in that deposition. It is like I tell my kids, "The harder you work, the luckier you get."I work hard to know my questions and outline by heart by the time I get to the deposition. The other advice I give is to be yourself. Bring that "you" to the game that they can never prepare against in the deposition or anywhere else.  Know what you want and how to ask for it.

Here are my practice tips on how I take a deposition with the hope you will recognize something in yourself. 

1.  Have specific goals in mind and write them down. Works for business planning and similarly, focuses your brain when deposing someone. It is hard enough to break down the resistance of the witness if neither one of you knows where you are going. Plan your work, then work your plan. (Look for me to totally contradict this later on).

2. Do research consistent with those goals you have set and have questions based on that research. The great thing about being older is that my generation still understands the value of privacy. But the people we depose let it all hang out online. I will try to depose someone with a picture I find online nearby of the deponent partying, beer bonging it or doing stupid stuff just so they know, I know. People do some real dumb stuff online for approval but in the offline world, it does not look like a smart decision.  I will ask the deponent about the pictures or situation to let them know how this day is going to go. You can see the wheels turning in their head and defending the case and making their attorney happy suddenly has a lower priority.   There is never a good answer that fits into the case but it is sure way to take control of a deposition and get the deponent to answer some questions. Use those resources online and the privacy they don't value against them.  I will never forget this 10 second Vine I found of a Bank attorney I was deposing. He filmed himself screaming at the top of his lungs into his phone because the Pirates won a meaningless game. (Note to self, all Pirates games are meaningless.)  Anyway, I had my kids set it up on a loop on my Ipad and just kept playing it while I slowly set up for the dep. The room was filled with his screams on a ten second loop the whole time I went over my notes and made small talk with the court reporter. This was the bank's trial witness. The guy learned who I was just from that move and he actually shook a little when he spoke.  We settled that case.  That ten seconds cost the bank more money than I expected. That ten seconds was as a result of a couple of hours research. Put the work in and then use your efforts to win the case. Sometimes, you can't spell deponent without the letters, D.O.P.E. 

3. PARAMOUNT that you know the case better than the person you are questioning and better than their attorney. The actual Midland attorneys don't have a clue about their cases until five minutes before any event in the case. They have too many cases and most default.  They have no motivation and it shows in their work. The outside firms that Midland hires on my cases sometimes have three or four attorneys on one case. You know why they use that many without my saying it here and that is on Midland. But either way, they never know the case better than me.  

4. Two ears, one mouth. In your deposition of the Midland Mook, Listen, Listen and then Listen some more. The deponent can only take so much "dep prep from her own rep" before falling into the same pattern we all live by: we all like to talk. So, they will eventually slip and when you hear something good, don't be married to your prepared questions. Feel confident to go off script when it helps your case. It always shows up-be open and flexible when opportunity knocks. And it will. It not a lucky break either. It is your hard work paying off.

5. Watch out for a common disease called "greedy attorney syndrome." I am not talking about attorney fees here. We all have "greedy attorney syndrome." The deponent says something great for the case and their attorney does not bat an eye, hell he barely has a pulse. You can't believe the great admission you just obtained. So what do you do?  That's right, you ask it again to get that same feeling of success. And maybe both the deponent and the attorney are still clueless until, Mr. Greedy shows up and you ask the question again. Now, it is okay. There are very few victories in these things so you are just being human in seeking some positive recognition of your work and skill eliciting the great admissions. But like driving on New Years eve, know when to say when.  Got a good statement? Leave the freaking thing alone and let sister counsel continue her nap. When you get a great admission, Immediately change the subject and move on. Don't give them a chance to change their tune or rehab on cross examination because you kept asking the same question.  When you get the admit, you must quit!  Hells yeah.

6. Read over old dep transcripts the witness has given. If the witness has been around enough, they are out there. You can pick up how they speak, defend themselves and what makes them give out information. In your deposition of the witness, flatter them and refer to all their other cases you have read. This is the "Deponent Dance." Make them feel good and special that an attorney is reading their old stuff. I think the facebook kids call it "following me." Flatter them, say nice things then go for the gold when their guard is down and their ego is up. If your research revels an annoying tick or a certain way they answer questions, key on that. 

I just did a deposition and my transcript research of the of the deponent's previous deps picked up a response type of the witness-he was from a younger generation, the one that starts every sentence with "So" and then launches in to their response. Everything is "So" at the beginning or every sentence.  So, what is wrong with the way someone uses the word "So" at the beginning of every sentence? The expression drives me nuts and I am old. So, right before his deposition, I told him I read all his previous depositions (flattery) and asked him if he was aware of his "So," tick and inferred he sounded uneducated (hey, you have to be a little mean and take control, so live with it). It bothered him so much he kept checking himself before he answered my questions. He gave me everything I wanted and spent most of the time trying to avoid the tick. His admissions were so good I use that same transcript today to win summary motions against his company. Can't tell you the company name but ATM would be good.  Remember, you have to be little mean to help your case when you consider they are usually lying their ass off to you. 

7. Wardrobe malfunction. I try to wear a  tee-shirt, shorts and flip flops to most depositions between April and October in my Northern deps. Jeans and a tee-shirt the other months. Hey, when I am sitting in a deposition working hard to force someone to say something their attorney tells them not to, I don't want to have to worry about my tie. I work too hard to be uncomfortable. You also want the other side to notice their own uncomfortable suit and tie. I see a guy who keeps his jacket on during the dep and I know two things: He is too buttoned up and more concerned about appearances than his client's well being and two, he probably sweats a lot. Either way, there is a psychology at work there and you have to let them know perhaps, you might be a little off. Deponents have told later on that it chilled them out a little and separated me from their own attorney such that they liked me more.

8. You put food and drink on the table in and let the deponent know you are in for the long run.  You can see it in their face. 

9.  I prepare the hell out of my case and try to know everything. Writing the questions you have for the witness is a form of studying. This again is born out of curiousity. You should have some knowledge or indication from your preparation how the other attorney has prepared their witness and what the they have told them.  My Script:  A Script is a good way to organize your thoughts but again, I will go off the script if I hit an information vein. Depositions are like playing blackjack: you can win all of your money in five minutes if you can recognize when the cards are hot. So, be prepared to go off script the first chance you get.  I have finished three hour deps and not got to all of my questions because my hard work took over the minute the deponent let me in his thoughts and forgot his prepared statements. 

10. Try to have fun (civilly and appropriately) with their attorney and mess with other side the way the deponent would if they were as ill bred and badly mannered as me. People would love to tell attorneys a thing or two but most can't because they are polite.  Then you do that when the other attorney gets a little rough. Even the hostile witness likes you if they perceive you "winning" a skirmish with their own attorney. Preparation, not brains is key. I actually have some friends from previous depositions that when they are in town for other cases, they call me to go to a game or meet. They will tell me they loved me smacking their guy around. Again, you have to do it appropriately.  It is about winning over the deponent if he can be won over to get the admissions you need.  You have read his other deps, you know all about him and you seem interested in his job and life. The deponent's attorney seems bored and acts like it is another boring case. If I see a deponent and their attorney give off any signals of incompatibility (usually their attorney is a stiff or does not interact well with his client that he met for the first time) I pounce. Something as simple as checking in when you write your name at the sign in sheet at the deposition location is a clue. If I see the deponent signed in about the same time as the attorney, there is good chance these two have not built up a bond or prepared well.  Again, don't be married to a script.  Also, trust your human instincts-powerful stuff. 

11. Follow a prepared script. The same thing I yell at other attorneys for relying upon too much during their deps of my client, I use too. But Parker, how about taking your own advice? Well (or So) here is how I use my script. (Again, this is a personal approach I use.) The writing and preparation of the script is a major part of my preparation and should be used as a suggestion towards meeting your goals. You can get what you want in 30 minutes if you really know your case because of your preparation.  But again, don't be married to a script's cadence and miss out on something. Ask the prepared question and follow up on the Answer and go as far with it as you want. The court reporter is taking everything down and you can always get back to your script if you get lost.  Never forget: The gems or valuable admissions come from Answers not the Questions. Don't get wrapped up in your own brilliance on paper. 

12. Do your own work. There are no short cuts to success in a deposition. I have noticed (and some attorneys admit to this) that a junior associate or paralegal prepares the deposition attorney's questions for them. That attorney loses valuable learning and research time and hurts their client's case that way. I sit down and visualize having a conversation with the witness and ask the questions and then write down anything that comes into my head. I would also recommend not half assing it and take a lot of time to do the work. I take a couple of days, maybe more. It is how I am wired. Other guys are smarter than me, blah blah blah. But I know myself and respect the psychology of it all.  I have to feel confident and hard work is the only way. "The harder you work, the luckier you get" is true. But you have to put in a ton of work in order to make people tell you things they don't want to.  And don't wake the other attorney when you do it.  

How do you protect your client from screwing up their own case by saying the wrong thing in their own deposition? They are nervous, perhaps scared and justifiably afraid of what the other attorney is going to make them say.  They have never been deposed before. The key then is to recognize that we are all afraid of the unknown.   The best way to help your client is to eliminate the unknown, show them what to expect and how to answer truthfully.  Less unknown, less uncertainty, greater comfort. I like to use the Rule of Five.  The Five arms my client with enormous comfort and fun tools to mess with the attorney who they originally thought would be messing with them. You are empowering your client to succeed. 

The Rule of Five is another great idea born out of a million of my mistakes. The Rule of Five is set in the premise that less is less and that more time in front of the attorney is bad for the case.  We have the client hold up their hand and touch their thumb and say, "No or Yes." They touch their index finger and say, "Do not Guess." They then hold the other fingers and say, "Five words or less."  So the Rule of Five is " No or Yes, Do Not Guess, Five Words or Less." Using the hand is teachable prop for the client to remember. Most people have hands but feet work too. The clients are instructed to not answer any question until five seconds have passed. Their answers are then concise and hopefully, less than five words. Less words, less oxygen for the attorney and less time to damage the. Time is the enemy of preparation of someone that is not normally in depositions. 

Important.  No matter what happens or how the client perceives something or interprets a question it is paramount (love that word) that they always tell the truth.  Second, they should never try to figure out what or why the attorney is thinking based on what is asked.The attorney barely knows why he is asking the question.  The client is instructed from the very beginning of the preparation that from then on, it is game time and they are to practice like they play. The Rule of Five is the only way to answer any question the attorney has. You must practice this in mock depostions and scold your client when they trip up. Positive feedback is good when the light turns on. On the day of the dep they must use the Rule of Five in their life that day to answer any question. The Truth will set you free and the Rule of Five will set you free from the deposition faster. 

"No or Yes, do not guess, five words or less." 

Less is less. No matter what the question asked, if it requires a No or Yes, answer No or Yes. Nothing else. Attorneys live off words and words are oxygen especially if the attorney is just looking at the deposition as a means to bill their client rather than get to the truth (common). No or Yes with nothing more reduces the time in front of the other attorney as there is nothing to follow up on. The attorney will try to press, but the client already answered. When the client has really adopted the Rule of Five, it is a great thing to watch.  I have had attorneys ask me (in front of the client), "what's wrong with your client?"  or "Why isn't she answering the questions I ask?" She is, just not the way the attorney expected. I remember one attorney who was so frustrated at the answers he was not getting (he was a real bully) that he kept banging the table every time he hated the answer. He finally just ended the deposition and stormed out. When it works, its a cool thing to combat the client stress and protect their case.   No or Yes says "No" to time wasting and reduces the stress and exposure. I rarely see my client tired after their deps. It brings them closer to me too as they can see I have got them out of a great unknown.

" Do not Guess." Simple enough but most humans are bred to be accomodating and helpful. We will help a stranger who asks for help, directions or our view on a restaurant or business. It is our nature to answer requests for assistance and be accomodating with information. Not my clients. They are instructed not to guess and for the hour or so they are in front of the other attorney, be as emotional as a robot. They are not there to help the other side use your testimony in a future summary motion. They have to be selfish and think only of their case. Do not guess. Train your client that if she does not know the answer, the are to say  "I don't know." If they knew it but forget say, " I don't recall."  The attorney will push but she is on a short string. The client does not know. If the client acts human and accomodating and tries to help then that case is probably done and gone faster than you can say "summary motion."  My clients are tasked with recognising poison words. If they start an answer with "I think" "Maybe" or "Possibly" and even "If I had to guess" they are being accomodating and probably screwing up the case. I tell them to turn off the accomodating button. Avoid a mess, do not guess.

Side note: Make sure you client knows to wait at least five seconds before answering any question,even easy stuff. I tell the client, the more time you take to answer, the less time you are in the deposition. Doesn't sound right does it? But a concise, short answer gives the deposing attorney nothing to follow up on. My clients are trained to pretend to be robots and sound like a computer. Short answers with no concern for what the other attorney wants rule the day. 

Other good note. There is no rule about where the client has to look in a deposition. Attorneys use non-verbal actions to push through a question or give the client the stink eye to intimidate them to answer but stink eye does not show up on the transcript-only words do. I tell the client to not look at the attorney. Just speak to the Court reporter or look down. An attorney that says he does not use his status to intimidate a deponent is not telling the truth. I have my client look at the nice court reporter or even his hands to remember the rule of five. You want your client to be the one in control and feel empowered. 

"Five words or Less."  This is tough one. There is going to be the need for the client to actually answer something with words other than no or yes or a non-guess.  What do you do? I tell them to answer in five words or less. You practice with the client and show them that "I have a blue car out in the parking lot" should be "Chevy Truck" "Car" or just Truck. Five words or less. The "five second rule" is not just about eating that potato chip you dropped on the floor. They must take at least five seconds before they answer.   You can watch the client struggle with the equation and try to answer with as few as words as possible. It is tough and a real challenge but practice helps. Less words, less oxygen and less admissions.  I have had attorneys watch the struggle and assume your client is challenged in some other way because the client will use disjointed words to answer and the attorney will back off to avoid bullying the poor guy. But, it is your client being a genius and is a beautiful thing to watch when it bothers the other attorney.   I tell the client to take that magical five seconds or five minutes if you like but reduce your answer to the lowest amount of words possible. Sound like a robot. Drives the deposing attorneys nuts who run out of questions in no time and have nothing to show when their clients ask them for a report.

Side note. Sometimes when you want the client to talk more than five words because they are asked about damages, it is a tough call to me make. Do you have them break the Rule of Five and possibly fall back into a bad habits of talking the guys ear off or limit the discussion on how your client was hurt. My usual call is not to allow the break in the routine and save the whole dep from contamination.  

Other Side Note. Also, adding to their comfort, you should tell the client to dress in the thing that makes them the most comfortable and be themselves. At least themselves as a robot.

Other great side note. Advise the client that when the dep is done, it is time to head for zee hills. Don't wait for a review, don't ask about the Pirates score, don't do nothing but run as fast as you can away from the conference room. Once the attorney says she has no more questions, my clients are trained to know to get the hell out of there. I have seen the opposite reaction cause great problems.  A dep is done, client hangs around and the attorney remembers she missed something and boom, more wasted time and your case is in jeopardy again.  Time is a client's enemy in a deposition.  Feets don't fail me now.