What's Law Got To Do With It? Debates Are Easy, Litigation Is Hard

With 60 million other Americans, I tuned in to Tuesday's Presidential debates which we were proud to have here on Long Island. The stakes were high; the pressure was on. But I had to think: Compared to what my clients go through, these two guys had it easy.

I'm thinking of my clients who have to testify at an examination before trial, or at trial itself. Both Obama and Romney had a full week of preparation and rehearsal with a team of experts. With all that behind them, each man had to answer just 45-minutes' worth of questions. And neither man took an oath to tell the truth. Compared to what my clients must do, it's a cakewalk.

Each plaintiff in a personal injury case must appear, before trial, in either a courthouse or a lawyer's office, to answer questions from the other side. So must the defendant. The defendant's lawyer has a right to ask the plaintiff questions, under oath, recorded by a court reporter, and transcribed in book form.

The questions and sworn answers may be used at trial, and they effectively "lock in" the case. The examination is crucial. The witness has his or her whole case at stake. The witness's lawyer is present to state objections, but the questions must be answered. Unless the judge is called in to rule, which is uncommon, there is no moderator. The deposition, or examination before trial, is not only the chance for each side to learn the details of the other side's claims, it is also an opportunity to cross examine. That goes double for trial testimony.

Clients are not experienced "debaters." They are ordinary people, usually testifying for the first time. Compared to a 90-minute debate, litigants endure much more. For the candidates, the ordeal is 90 minutes, then it's over. Plaintiffs testifying at an examination before trial, can be questioned for two hours, four hours, six hours, or even days. I work to keep them calm and focused on the questions.

I have many years' experience preparing clients for their examination, and they get the benefit of my knowledge. But a week of "rehearsal" with a team of trainers, like the politicians? No litigant gets that for a typical lawsuit.

Another thing clients can't get is the "pivot." As we saw at the debates, the politicians were asked specific questions. What did they do? They usually turned them into the questions they wanted, and "pivoted" to prepared speeches. A fraction of the questions got answered directly. Can a witness at deposition or trial get away with that? Rarely. A non responsive answer gets an, "I move to strike the answer as not responsive to the question," from the questioner. The question is asked again and again until the witness responds directly. 

In politics, much may be at stake for the nation, the state or the community. But in litigation, one ordinary person may have his or her world at stake. And the campaign team? It's the lawyer or the law firm helping along.

MITCHELL KESSLER is a plaintiffs' personal injury lawyer with thirty years' experience. He works at Levine & Grossman in Mineola. He can be reached at 212-268-2677.