One of the more important services a mediator can provide is bringing reality to your client’s evaluation of his or her case. When your client does not speak English you have to decide whether translation or interpretation will be effective. If not, having someone who speaks your client’s language may be important and must be considered in your selection of a mediator. (No, I’m not bilingual. But I want my Tips to be worth your time. This issue is important and can not be ignored.)
Certified in civil-circuit, family and appellate mediations. I was an accountant before becoming an attorney. Schedule at http://www.mediatorman.com without call or email.
Last week we lost a giant; a giant of a man, a giant in the legal community.
My experience with Ervin was marked by his intellect, his kindness and his generosity. As readers of these Tips know, I am always looking for worthwhile material. After attending a seminar where Ervin was a presenter I approached him to ask if I might use his name and thoughts. He could not have been more gracious and welcoming. I had occasion to communicate with him several times thereafter. Each time he was wonderful. My heart goes out to his family, colleagues and friends, those fortunate enough to have had close relationships with him. I wish you all strength and comfort.
Sunday, May 29 is Memorial Day. I give thanks for those who have made the ultimate sacrifice so that you and I and our loved ones can live in this land of freedom and hope. God bless them. God bless our country.
Except where you are taking the deposition of an adverse witness which you intend to use at trial in lieu of live testimony, it is almost always a good idea to make an opposing witness comfortable and let your depo seem like a conversation. You’ll get more. But remember: You yourself must always stay focused.
You can sometimes get helpful hints from your videographer when videotaping a deposition. Things like the camera angle or composition (head shot versus wider view) can make a witness more or less sympathetic, vulnerable or credible.
Here are three reasons to videotape suggested to me by very experienced Miami litigator, Lawrence Shapiro: (i) Education: Your performance is available for evaluation; (ii) Information: Nuances in the witness’s responses are available in a manner impossible to have from the printed page; (iii) Effect: Many offices have flat screen panels where a witness’s responses can be displayed during the deposition. Among other ramifications, this can have a disconcerting effect on a witness which might be of benefit to your case.
Problems with videotaping depositions: Until recently, the main reason I could offer for not videotaping depositions was the additional cost it imposed upon the client. Now I have become aware of at least one reputable deposition provider which includes, at no extra charge, full videotaping. Therefore, the only negative I can suggest occurs when you are considering videotaping your own client’s deposition due to health concerns or other considerations. You have to consider the effect of telling your client that you want to videotape his or her deposition. Clients may react in a strong and negative manner to the suggestion.
One of the most important qualities of an expert witness is sincerity. At a recent Bench and Bar Conference one panelist’s comment: “If you can fake that the rest is easy.”
Obviously, a fertile area for Tips. I will begin simply, sharing words of H.T. Smith, a long-time legend of the Miami Bar: “You don’t have to be cross to do cross.”
Today’s shared story is from an attorney who chooses to remain anonymous.
He tells of a seminar he went to a number of years ago dealing with the uses of technology in the courtroom.
The presenter told of a case which involved an airplane crash in the Everglades. A 20 seater had gone down. As is often the case, one of the questions was whether the cause was pilot error or equipment failure.
To prove their case, counsel for the insurance company actually acquired a 20 seat airplane the same as the one that had gone down. And they crashed it! The plane had crash dummies in all seats which had been occupied at the time of the accident. Every observational and analytical device available at the time was used to record what happened, including damage to the plane but especially the injuries to the crew and passengers: How bones (skulls, necks, pelvises, arms, legs) were broken, how heads were impacted, passengers’ faces thrown into seats in front of them and so on. The idea was to show that the equipment did not fail; that the crash was caused by pilot error. Of course, films, inside and out were part of the project.
When all data from all the recording equipment was fully analyzed the exercise supported the insurance company’s case. But they did not use it! Reason: The films, pictures, descriptions and data painted so horrific a scenario that they knew the jury would be turned against them. They could not use their extremely expensive re-enactment of the accident.
Moral: Consider all consequences thoroughly before using technology to support your case.