You’ve worked hard to prepare your client for her deposition and you’re convinced that she is ready. During the deposition, Mr. Defense Lawyer pulls out documents from his briefcase that you’ve never seen and marks them as exhibits. You reassure yourself there’s nothing to worry about, but the little alter-ego in your head isn’t quite sure.
Turns out that the exhibits are print-outs from your client’s public Facebook page…and it’s not pretty. The last few years have amassed a boat-load of damaging photos and ugly, racist statements from your client. Your client’s profile photo is a lovely image of your client pointing a gun into her mouth (real story) or an offer for sexual services for anyone with cash (yes, that’s real too).
You sink lower in your chair as Mr. Defense Lawyer shows the horrific exhibits to your client and finally, you ask for a break to escape the deposition. But the damage is done, Mr. Defense Lawyer exposes your client as a low-life and there’s not a damn thing you can do.
Step #1: Analyze Your Client’s Social Media Posts
Begin by making a print out of your client’s public Facebook page and take a screen shot of each page. Have your secretary comb through your client’s Facebook page for damaging photos and statements and if you have even the slightest concern, ask your client to take down her public Facebook page.
Next, find out whether your client is active on other social media platforms, i.e., Twitter, Instagram, Snapchat, etc. and look for damaging photos and statements. You should archive the public photos and statements and warn your client that Mr. Defense Lawyer will be monitoring her social media posts.
You should be looking at the social media profiles BEFORE you file the lawsuit. You can’t prepare your client to answer questions about her ugly Facebook posts unless you have them before her deposition.
Step #2: Analyze Text Messages
Mr. Defense Lawyer will ask for your client’s cell phone records and a print-out and log of her text messages. Text messages may be even more damaging than Facebook posts, as each will have a date, time and the recipient’s phone # and an unfiltered ranting courtesy of your client. Mr. Defense Lawyer will be licking his chops once he gets your client’s “stream of consciousness” text messages.
As with social media profiles, get your client’s cell phone and read her text messages, focusing on the texts on the day of the accident. The text messages may help your client recall details about the time of the accident and the persons she spoke with.
Step #3: Getting the Dirt on Your Client
Your clients will lie to you about the “skeletons” in their closet. Your client may be ashamed of her criminal conviction/bankruptcy or assume it’s not relevant. Even if you tell her that you need everything about her past, she’ll still withhold information and tell you little “white lies”. NEVER ASSUME YOUR CLIENT IS BEING HONEST WITH YOU.
Do a criminal background search on your client and check for bankruptcy filings. You might discover that your elderly, church-going client was convicted of bank fraud for stealing $ from the mentally challenged (sadly, another true story) or that she filed a bankruptcy petition a year before her accident.
The Value of a Pre-Litigation Checklist
Before you file the lawsuit, have your assistant prepare a “Pre-Litigation Checklist”, where she documents her search for your client’s social media posts, text messages, criminal background and bankruptcy history and annexes relevant documents. Once the Pre-Litigation Checklist is complete, have your assistant bring it to you for review and you and your assistant should sign it; it’s important to formalize the Pre-Litigation Checklist and have it accessible for deposition and trial preparation.
With a Pre-Litigation Checklist, you won’t have to worry whether Mr. Defense Lawyer has the goods on your client—you’ll already know if your client turns tricks in her spare time or has done time in Sing-Sing for armed robbery. If you’d like a copy of our Pre-Litigation Checklist, send an email to our Happiness Creator and Problem Solver, Alyssa Marcello, at email@example.com.