Boutique Law Firms, Litigators, Small Law Firms

Your Client Is Your First Best Expert

Information from your client can turn losing cases into winners.

By Christine A. Rodriguez  
on

In business and employment litigation, it is imperative for counsel to have a grasp of the day-to-day business of your client, or in cases where you represent an individual against a company, to know the business of that adversary. Of course, we are lawyers, not captains of every industry, and there is no way that we could have an expertise in the businesses of all our clients. Unless you practice in a specific niche area, you have to learn your client’s business each time you take on a new client. There is no more effective way to represent the business client or the individual suing in a business or employment dispute.

The best place to start is with your client. That person is either a leader in the company you represent, or an employee who has been exposed to the day-to-day operations. Your client is best equipped to educate you on the basics of their business and the normal practices of both the industry and the company.  One of the first things I do with a client on a new matter, particularly in employment litigation, is have them describe what their company does and their role in that company, in detail. That gives me a sense of who the key players are and what information I should be looking for in discovery. I will do this again when preparing for depositions so that I know what questions to ask the adversary’s witnesses and where I can pinpoint inconsistencies in testimony about both regular business practices and specific issues in dispute. I do this again after depositions to prepare for the inevitable summary judgment motion and again right before trial to prepare for cross-examination.

This practice has helped me turn multiple cases that initially looked like losing ones into cases that survived summary judgment and settled. Recently I was preparing for the depositions of defense witnesses with a client whose own deposition had gone rather poorly. The client, despite hours of prep and repeated instructions from not one but two team lawyers, gave long, drawn-out, editorialized answers to questions and repeatedly missed the opportunity to provide truthful details when answering questions that were essential to the claims in the case. If the client’s deposition was the only evidence we had in the case, simply put, we were toast.

Instead of giving up, we brought the client in and grilled the client on every aspect of the business again before starting the defense depositions. We brought the client in once more after the first defense deposition and reviewed that testimony for specific issues and rebuttal testimony to develop with the remaining witnesses. Based on what the client gave us, we were able to bring out details in the defense depositions that showed those witnesses to be less than credible. The client had significant knowledge not only about the industry, but also about the defendant company and the normal practices in the office where the client worked. Because the client was able to point us in the right direction, we got enough to identify material issues of fact in the depositions, showing that the reasons for the client’s termination were greatly exaggerated (actually false) and pretextual, and allowing us to survive summary judgment.

Not every client is comfortable actively participating in the litigation. Some clients take a hands-off approach and simply want periodic updates on the status of the case.  That’s fine, and at my firm, my colleagues and I work with each client in the way that is most comfortable for them, as long as we can accommodate it.  However, even with those hands-off clients, it is important to engage them in the process early on so that they can educate you on the company’s business as needed. Reassure those clients that you will only call upon them at set times, at specific stages in the litigation, and only when needed. When possible, such as when the client is a company and not an individual, have the client designate someone with knowledge to be your point person if the regular company contact does not want to be as involved in the litigation. Whatever way you can get the information you need to be properly educated about your client’s business, get it early and use everything your client knows to your advantage. Your client is always your first best expert and often their knowledge is your secret weapon.

Christine A RodriguezChristine A. Rodriguez is of counsel to the firm Balestriere Fariello and successfully represents individuals and small businesses in all manner of employment discrimination, civil rights, criminal defense, civil litigation and commercial litigation matters. She also advises small businesses on all aspects of legal matters from contract to employee issues. You can reach her by email at christine.a.rodriguez@balestrierefariello.com.

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