In cases where the client may not survive to trial it may be necessary to perpetuate their testimony. How this is handled depends almost entirely on the circumstances involving the client and the general style  or approach of the lawyer. Having some limited experience with perpetuation depositions of dying clients in cases like  mesothelioma cases and like cases I have some ideas.

The video setting is very important. The first issue is the camera position and what is being filmed. I want to avoid filming only a  head shot. I don’t want distracting items behind the person talking. I to make certain the background isn’t  distracting, but I also don’t want a video flat screen either. I want to avoid a camera angle with client lying sideways or other peculiar positions that can be unnatural looking and distracting. I prefer a shot sitting up that shows more than just a talking head, but not so much as to distract from the client. .

I also am concerned about the client’s appearance and clothing. I want a good impression  in dress and appearance. I don’t want a tee shirt with some slogan or the client wearing baseball cap turned backwards or any other similar poor impression. My goal is not to project a person who makes a bad impression, but rather one who is sick. I want someone jurors will have a favorable impression about in dress and general grooming. That does not  mean a suit and tie, it simply means something that looks natural for this client.

I want to use exhibits, not a lot, but things like photos the client can talk about that inspire genuine feelings and memories about family, life and his situation. I want to intersperse them through the deposition.

I want to make sure the client is prepared for the testimony. I don’t mean rehearsed and memorized, but  I also don’t want some unexpected testimony   of a damaging nature. I want the client to know what we are going to be discussing and the important questions as well. Preparation includes client demeanor during testimony. I want the client to be seen as someone who is resigned to the situation, not one who is angry or bitter or looking for pity. I don’t want the impression the client is looking for sympathy either.

It is not the client, but the other family members, doctors  and minister to do  tell the sympathetic stories, the suffering involved and the pain of the situation. The client’s demeanor is that of a brave person in the face of everything who still can smile and is only concerned about their family members and concern for others.  

In preparation, be sure to research if there is any testimony the law requires that only the client can offer. Satisfy all legally required issues which depend upon the client. The general examination consists of the normal matters we cover with a client: Background of who are you, family history, work history, past medical, bills, future medical and treatment with description etc. To that I’d add the questions about the fact the client knows they are dying and what that means to them. Other family members tell stories about this and their relationship as well.

What sort of questions would I ask? It depends upon the client and their story. My draft  outline might  include this sort of thing.

  1. How long have you been married?
  2. Tell us about your (wife/ husband)
  3. What  would you like us to know about  your children?
  4. When did you find out about the (cancer)? Tell us about that
  5. Tell us about the treatment the doctors gave you
  6. When did you learn there was nothing more they could do?
  7. Tell us about that.  What were your feelings?
  8. Tell us how this affected your family
  9. What are you most thankful for?
  10. What’s the one  thing you regret the  most?
  11. What’s the  worst thing about this cancer disease for you?
  12. What’s been the hardest thing for you go through?
  13. What’s your biggest worry and concern about your family after you have gone?
  14. How would you like to be remembered?

Jonny Cash has a song “Further on up the road” that might of have some value.

“If there’s a light up ahead well brother I don’t know
But I got this fever burnin’ in my soul
So let’s take the good times as they go
And I’ll meet you further on up the road

Further on up the road
Further on up the road
Further on up the road
Further on up the road

One sunny mornin’ we’ll rise I know
And I’ll meet you further on up the road
One sunny mornin’ we’ll rise I know
And I’ll meet you further on up the road.”

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