Biglaw, Boutique Law Firms, Depositions, In-House Counsel, Litigators, Small Law Firms

Beyond Biglaw: Effective Deposition Defense (Part 1)

Depositions are important -- and if the fate of many litigators is to be a "deposition lawyer," then one might as well be as good at depositions as possible.

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Biglaw litigators may enjoy healthy pay, but they are also the target of some ribbing — particularly from the trial-lawyers bar. Anyone who has practiced litigation in Biglaw has heard that they are at best a “deposition lawyer,” better suited for churning out endless motions than for performing in front of a judge or jury. There is no doubt that for the majority of Biglaw litigators deposition experience is much easier to come by than trial experience. And while trials are definitely more intensive and fun, in my experience preparing for a critical deposition in a patent case is in a way more difficult. Unlike at trial, where nearly all of the direct and cross examinations are scripted, there is an element of the unknown at a deposition.

When it is an important witness, such as a technical or damages expert, everyone involved in the case knows that a deposition can be a make-or-break event. In fact, one of the things that makes preparing for trial testimony easier than preparing for a deposition is that when we prepare for trial, we rely heavily on prior testimony in the case. The best source for that prior testimony? Deposition transcripts. But going into a critical deposition, there is much more uncertainty. Everyone on the team worries if the witness will hold up. Does not matter how experienced the expert is, or how senior a business person. The wrong answer can doom a case.

While it may seem like deposition defense is a thankless job, it also provides a priceless opportunity to “hear” your opponent’s approach to important issues in the case. And that can be even more valuable than trying to extract information from a well-prepared witness at a deposition you end up taking at another point in the case.

So depositions are important. And if the fate of many litigators is to be a “deposition lawyer,” then one might as well be as good at depositions as possible. One critical skill that is often overlooked is how to prepare a witness for deposition. Most deposition training at Biglaw firms centers on teaching young associates (and new partners who may have risen to their status based on other skills) how to prepare to take a deposition. It is not easy to take lawyers immersed in the alternative universe that is Biglaw and to force them to ask coherent questions on a variety of topics over the course of the day — to a real (usually non-lawyer) person, nonetheless.

But at every deposition there is the offense and the defense, and while the questioning role may be the more glamorous one, the importance of effective witness preparation and an artful defense of that witness at deposition can’t be overstated. Because it is presumed a less glamorous task, defending witnesses is often shuffled down to more junior lawyers. If and when something goes wrong at the deposition, however, such as a witness fatally damaging a case with ambiguous testimony, or even a witness complaining that they were not properly prepared, there are usually consequences — for the junior lawyer, and his or her superiors. In fact, handling witnesses poorly at deposition is a leading cause of clients looking elsewhere for counsel, either in the case where the issue arose or in future cases.

No general counsel will sit idle in the face of a disastrous deposition handled by their litigation counsel. All it takes is a complaint, about either the way a witness was prepared, or how the lawyer defending did a poor job, to send a general counsel’s eyes wandering toward alternative counsel. That is reason enough to approach deposition defense thoughtfully. The more important the witness, the more likely that the client will develop wandering eyes.

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For that reason, it is extremely important to respect the role of in-house counsel in the deposition process. Especially for company employees. Because how an employee feels about how his or her deposition was handled is often a personal reflection on how well the in-house counsel is managing the case. For that reason, it is often important for outside counsel to allow in-house counsel to serve as the primary interface with the witness, starting with the process of identifying the appropriate witness in the first place and continuing with the coordination of schedules and other logistical considerations. The deposition phase of the case often presents the best opportunity for in-house counsel to consider the issues in the case in depth. So let your in-house contact be as involved in the process as they want to be. And work hard to make a good impression.

Of course, as important as it is to be mindful of in-house counsel during the deposition defense process, the most important thing for everyone involved is making sure that witnesses are well-prepared. It is very simple. Prepare your witnesses well, and you are more likely to have a happy client. Next week, I’ll address the topics that should be addressed in a deposition preparation outline. And why it is so important to remember that witnesses are people first and foremost, and need to be treated accordingly.

Please feel free to send comments or questions to me at [email protected] or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

Gaston Kroub lives in Brooklyn and is a founding partner of Kroub, Silbersher & Kolmykov PLLC, an intellectual property litigation boutique. The firm’s practice focuses on intellectual property litigation and related counseling, with a strong focus on patent matters. You can reach him at [email protected] or follow him on Twitter: @gkroub.

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