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

Beyond Biglaw: Effective Deposition Defense (Part 2)

Defending depositions is important, so make sure you do it right.

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In last week’s column, I discussed the importance of effective deposition defense, with a focus on the client-facing aspects of the process. Now it is time to focus on the true star of the show, the witness.

Yes, some witnesses will be important, perhaps even a senior executive at a client. Or a technical expert, on whose testimony your case rides. And other witnesses will be more tangential, like the IT guy you need to defend with respect to e-discovery issues.

Yes, I understand that every witness is critical, especially when it comes to e-discovery. Human nature, however, is to treat “important people,” like executives and experts, with an extra level of care. As a lawyer, the key is to treat every witness you are preparing for deposition with respecr — while remembering your role as an advocate, tasked with winning your client’s case. Effective defense of depositions goes a long way towards achieving favorable litigation results.

Here are some tips:

First and foremost, it is important to remember that you are defending a person. Not just a witness. Irrespective of whether they are a low-level employee of a client, or an expert whose hourly rate rivals yours, they are in your care during a process that is at best uncomfortable, and at worse very stressful for them. Most normal people are rightfully wary of conversing with litigators at all, much less enthused about fielding questions from them over the course of a day. Because your witness is a person, with a life that is more valuable than “your case,” when you defend that witness you will be protective of them. Think Marlin of Finding Nemo-fame protective.

Being protective is not limited to the day of the deposition. It actually starts from the first moment that you know you will be representing that person at deposition. First off, you will want to make the scheduling of the deposition as painless as possible for your witness. With attention to logistical details at the same level of care as you use when planning a personal vacation. It is fine if you need to fly a witness in for preparation, or even for the deposition itself. What is not fine is to leave the witness to fend for themselves regarding the travel plans. A timely email or discussion letting the witness know of comfortable hotels within walking distance or easy commute of your office goes a long way. So does scheduling the preparation or deposition in a way that allows the witness to catch their desired flights home, or recover from their inbound flight. Logistics are important, and should be handled as seamlessly as possible with the comfort of the witness as a priority.

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It is also important to be mindful of the value of the witness’ time. Think hard about how much prep time is actually needed, and prepare to use that time effectively and efficiently. Documents for review should be prepared and easily accessible. An outline of topics for discussion should be prepared and followed, and ideally provided to the witness in advance. Ample time should be built into the schedule to answer any questions the witness may have, either on the deposition process or substantive issues. And even if the preparation is being handled primarily by one of the junior members of the litigation team, one or more of the senior trial team members should at least check in on the prep session. A word of encouragement from a senior lawyer can go a long way to bolstering the confidence of a nervous witness. Nervous witnesses are usually better than super-confident witnesses by the way. They usually care more, and actually listen to direction.

The same level of thought that goes into things like logistics before the deposition should go into your thinking on the day of the deposition itself. Make sure our witness knows where to be and when. Also ensure that they are comfortable, in terms of being rested and properly fed. Do a full visual sweep of the conference room where the deposition is taking place, looking for anything unusual or that could be off-putting to your witness. Make sure the conference room is at a temperature that is comfortable for the witness, and that their chair is both comfortable and properly oriented. If the deposition is being videotaped, and assuming you gave your witness the appropriate instruction beforehand as a result, take a look through the videographer’s viewfinder to see how your witness looks in frame. These minor things can add up, and contribute to a negative result if neglected. So be mindful.

Also, on the day of the deposition remember the witness is your cub, and you are the equivalent tiger, elephant, or grizzly-bear mom — whatever animal comparison you prefer. They will never be out of your sight for long and you will be super-protective of their needs for things like breaks in the questioning. If you prepared the witness correctly, the day of the deposition itself should be manageable. Be alert, and responsive, and pray like heck that the witness does not torpedo your case with some unanticipated testimony on a critical topic. As a lawyer, the days spent defending depositions should be among your most physically and mentally taxing. That is good, and a sign of money well-earned.

Finally, don’t forget to stay in touch with the witness for any post-deposition formalities. Make sure they understand their post-deposition obligations to review the transcript and the like. Best to keep on good terms with them. Who knows, you may need to prepare them to testify at trial.

Please feel free to send comments or questions to me at gkroub@kskiplaw.com or via Twitter: @gkroub. Any topic suggestions or thoughts are most welcome.

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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 gkroub@kskiplaw.com or follow him on Twitter: @gkroub.

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