Recently, a colleague brought me in on a case that had some of those dynamics. The client was a scattered mess when they were telling their story about some fraud that happened to them. And even though they had great facts, when it was time to prep this client to testify, they seemed shifty when talking about what happened.
It was confusing to my colleague, who is super smart and someone I’ve looked up to for a long time. But he was missing some key ingredients to get this nice individual prepped to testify.
Your client might even be a combination of the above.
Regardless of the type, you’re worried that even though they have a GREAT case, you’re going to lose.
Or, be resigned to accept an unfavorable settlement because they testify poorly or you’re not willing to risk them testifying really poorly.
And, you might be subconsciously wanting to get them off your books ASAP, because the ways their personality and behavior challenge you is a distraction to getting important things done.
So what do you do in this situation? Barring those situations that warrant withdrawal, subject to applicable ethics and court rules, most lawyers do one or more of the following things:
But here’s a huge clue: our clients are doing the same things to themselves. And it’s not working for them any more than it works for us.
If you don’t get to the client’s emotional truth and get them owning it, the other side drives the narrative about what the facts mean, and the litigation just leaves you and your client feeling helpless.
That’s what my colleague brought me in to help him do: get to the client’s emotional truth. And it made all the difference.
1. Be a human being first, and a lawyer second.
I first got to know the client a bit in a public place where it wasn’t appropriate to talk about the details of the case, but we could make some small talk.
Even better, spend time at the client’s house. The point is you need to be in a place where humans hang out and be human. You will learn SO much more than you will in a sterile, intimidating conference room.
2. Then, before grilling the client on details, honor the client’s dignity. You want to know everything (assume the other side already knows the unflattering stuff). But you don’t yet know everything that can help your client.
I illustrate this by drawing an iceberg on the whiteboard in the conference room, showing how much more of the iceberg is beneath the surface of the ocean.
I explain that much of what might come out and be aired in public is the tip of the iceberg, and some of the stuff under there might be privileged, but I need to know everything underneath, including how it all feels.
3. Tap into your curiosity as a feeling person, not as a fact-finder plugging facts into elements of the claim or defense.
If there’s something the client doesn’t want to talk about, ask WHY? If there is something the client won’t shut up about, WHY do they keep harping on it?
Ask WHY not in a grilling way, but in a loving way. Keep asking why until you get to some judgment the client has against themselves about the ordeal.
This gets you to the core emotion that is making them “difficult.” Hint: it’s often shame. Shame is often under surface emotions like anger, obsessiveness and minimizing.
4. Offer to the client that the shame (or other core emotion) they feel is because they are blaming themselves.
Even if they have done a few things wrong, so what? Nobody’s perfect.
Victim shaming is a real thing, and often the victims do it to themselves.
When your client stops shaming themselves, wonderful things happen with their confidence under pressure.
Your client stops hating themselves so much in the context of the case.
Usually then your client becomes much easier to prepare, because you have cleared away a bunch of mental b.s. about who the villain is in the story.
Your client often gets a sense of relief that makes them easier on you, as well. You have created a safe space for the client. You stop hating and fearing your own client.
SARAELLEN IS ADMITTED TO PRACTICE IN THE FOLLOWING JURISDICTIONS
State of Alaska
United States District Court for the Western District of Washington
United States District Court for the Eastern District of Washington
United States Bankruptcy Court for the Western District of Washington
United States Bankruptcy Court for the Eastern District of Washington
United States District Court for the District of Alaska
Ninth Circuit Court of Appeals
Pro Hac Vice:
Third Circuit Court of Appeals
SaraEllen has also been admitted pro hac vice to the United States District Court for the Eastern District of Pennsylvania, United States District Court for the Western District of Tennessee, and the State of Colorado
NOTABLE CASES AND VERDICTS
Sedric Ward v. Shelby County, Western District of Tennessee Case No. 2:20-cv-2407-JPM-cgc ($561,000 jury verdict for economic damages against Shelby County for violating the Uniformed Services Employment and Reemployment Rights Act (USERRA); jury finding that Shelby County’s USERRA violations were willful affirmed by Court; final judgment $1,570,035.18. See, 2:20-cv-2407-JPM-cgc Dkt. 191.
Brandt v. Columbia Credit Servs.,Western District of Washington Case No. 2:17-cv-703-RSM ($288,967 judgment against debt collector Woehler under the Fair Debt Collection Practices Act; see also 2018 U.S. Dist. LEXIS 164445)
Boldt v. Quick Collect, Inc., Pierce County, Washington Superior Court Case No. 13-2-14613-0 ($206,218.30 bench verdict for Plaintiff against Quick Collect, Inc.)
McCrobie v. Transworld Systems, Inc., Pierce County, Washington Superior Court Case No. 18-2-6502-5 ($132,820.58 judgment against debt collector TSI under the Washington State Consumer Protection Act.)
Douglass v. Convergent Outsourcing, 765 F.3d 299 (3rd Cir. 2014) (precedential opinion under Fair Debt Collection Practices Act)
Easbey & Hart v. Standley et al, Clark County, Washington Superior Court Case No. 13-2- 03133-1 ($50,000 bench verdict for Plaintiff)
Asset Recovery Grp., Inc. v. Wilson-Codega, 2021 Wash. App. LEXIS 2716, 2021 WL 5298592 (Co-wrote Amicus on behalf of Northwest Consumer Law Center)
Fangsrud von Esch v. Legacy Salmon Creek Hosp., 738 Fed. Appx. 430, 2018 U.S. App. LEXIS 25976, 2018 WL 4360993 (and, after this case was remanded and was dismissed by the court at trial, defeated defendant debt collector’s motion for sanctions; see: Fangsrud Von Esch v. Legacy Salmon Creek Hosp., 2021 U.S. Dist. LEXIS 50530, 2021 WL 1018926); prevailed on debt collector’s appeal of the order denying sanctions and Plaintiff was awarded costs; see: Fangsrud von Esch v. Asset Sys., 2022 U.S. App. LEXIS 15084, 2022 WL 1772996.
For brevity, various other additional favorable rulings in trial courts are not listed here.
Speaker, National Consumer Law Center Annual Litigation Conference, 2017, 2021 and 2022
Speaker, National Association of Consumer Advocates Webinars, 2017 & 2021
Speaker, Washington State Association for Justice Consumer Law Intensive, 2015
Published in The Warrior and WSAJ Trial News Executive Committee, WSBA Antitrust & Consumer Protection Section
Published in the Trial Lawyers College Warrior Magazine
EDUCATION AND TRAINING
Juris Doctor, cum laude, Georgia State University College of Law 2004
Bachelor of Arts, magna cum laude Eastern Washington University, 1999
Graduate, Gerry Spence Trial Lawyers College, July 2012
Certified Professional Coach, The Life Coach School, September 2020
Certified Advanced Deep Dive Coach, Master Coach Bev Aron, December 2021
Professional Psychodrama Training Workshop with John Nolte & Kaitlin Larimer, 2014, Corbett, OR