Our thoughts, so far, presuppose that you will be candid with a client or potential client once you have evaluated his position based on the available evidence.

If you will continue to tell folks that they are on the side of the angels when it is clear that the other side has something significant supporting it's position, and don't aggressively promote amicable resolution, then you need not read any further.

When Arthur Anderson accounting shredded documents regarding Enron's business, in the face of an obviously oncoming SEC and grand jury investigation, some fool concocted a position that they weren't doing that to conceal evidence or obstruct justice, but they were 'just' complying with their records retention policy. If you are at that level of stupidity, you are counting upon a jury of idiots, which, of course, Arthur Anderson didn't get.

And, amusingly, it was some dumb lawyer who concocted that scenario for the company. Delusional lawyers and desperate clients concoct fanciful stories that are not worthy of belief and try to sell them to a room full of ordinary folk with ordinary common sense. Most of the time it bites em in the ass. This article is not for such people.

We are now at the point at which our investigation about our client's position is telling us that we have a sound evidential and legal position, and we are not getting anywhere with initial efforts at reasonable settlement.

People will have to be deposed.

Now is when you prepare for trial -- not prepare for a deposition -- prepare for trial.

To me the deposition is the trial. I want my people to be as good in the deposition as they will be expected to be at trial. If that can be accomplished, the deposition transcript will not be useful in the witness' cross examination, for there will be no prior testimony inconsistent with his trial testimony. The deposition will serve to enhance chances of settlement.

Witness preparation begins with reassurance.

Tell the witness what you think about the case.

Tell the witness that the only thing he can do to hurt you is to be untruthful.

Tell the witness that if you have made a mistake and he spots it, the greatest favor he can do for you and for the company is tell you what that mistake is.

If his perception differs from yours, remember that he was there when it happened. You weren't.

Tell the witness that the plainer and simpler the telling of the truth is, the more believable a witness he will be.

Tell the witness that it is easy to remember the truth and difficult to tell untrue stories the same way more than once.

Tell the witness that what you are going to help him do is to tell the truth in the plainest and simplest and most direct form, eliminating extraneous noise that everyone has when they speak of events and their participation in them.

Tell the witness that not every fact in any case is going to be one hundred percent in support of your side of the case, and that the negatives have to be dealt with in equally straight forward a manner as the positives.

A witness who will, without hesitation, own up to a mistake is a believable witness. Having been up front about the bad stuff, what he says about the good stuff will be pure gold credibility.

If you have no confidence in your case because of the presence of negative facts, then you probably don't have a case and ought to settle it as soon as possible. Negative facts abound in every business dispute There are always mistakes in every single business project. Perfection is impossible, and pretense about never being wrong is a hallmark of a liar.

Now that you have had the conversations with the witness that have provided him with the requisite comfort level, and trust has been established between you, it is time to 'work' the documents and hear what he has to say -- round one.


Tamerlane group's purpose is to prevent you from shooting yourself in the foot when you see a bad event threaten to develop. Our focused expertise in crisis management can prevent these situations from developing if we are called before someone makes self-humiliating public statements/files absurd lawsuits. 

(Here is Part 2. This is Part 3 of 6 on How to Win Franchise Trials. Here is Part 4)



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