PRACTICE POINTERS
The Best Offense Is a Good Defense Successfully Defending Depositions BY STEFANIE SCOTT SHAH there is any pattern to his/her questioning. If there is, use those patterns/questions as a roadmap for your deposition prep. FOCUS ON THE TASK AT HAND
Stefanie Scott Shah is the founding member of Scott Shah Law. Her practice includes complex commercial, patent, and employment litigation. Additionally, Stefanie acts as outside general counsel for growing businesses, handling all their legal needs. She can be contacted at stefanie@scottshah.com.
T
here is a misconception that defending a deposition is easier than conducting one. If your goal is to leave your case no worse off than it was before the deposition, that might be true. But if you want to gain a tactical advantage during the deposition, playing defense is just as challenging as playing offense. Here are a few tips that will make defending depositions harder, but will ultimately help you, your cases, and your clients.
WATCH THE GAME TAPE
Successfully defending your client begins before you step into the deposition. I will spare you the standard tips for deposition preparation and will, instead, focus on one distinct suggestion: If you have any deposition experience with the deposing attorney, review prior deposition transcripts and determine if 30
AUSTINLAWYER | MAY 2019
I once had a client tell me he was thankful I was defending his company’s deposition. He told me that he had previously and regularly had lengthy email conversations with another company attorney while said attorney was defending the depositions of other clients. Understandably, although this particular client appreciated the quick response from his counsel during someone else’s deposition, he did not want his corporate representative to be defended by an attorney who was more concerned about responding to (another client’s) email than protecting his own company’s interests. The truth is, when you are not the one asking (or answering) the questions, it is easy to lose focus, respond to email, think about other cases, etc. For this reason, the person taking the deposition has a strategic advantage over the person representing the deponent. The former can successfully bore the latter into losing concentration and missing opportunities to protect his/her client. In contrast, the strategic advantage of the attorney defending the deposition is that he/she has the ability to actually listen. If you closely pay attention while defending depositions, you will have the upper hand. GO TO BAT FOR YOUR CLIENT
Just like it is easy to lose focus while defending a deposition, it is also easy to overlook and/or avoid disagreements with the de-
posing attorney. You are sitting in a quiet conference room with your client, opposing counsel, and a court reporter. There is no judge present to rule on disputes. The atmosphere alone is enough to discourage confrontation. But it should not be. Although you are outside a courtroom, you are still representing your client in a hard-fought litigation. If your client’s rights are being trampled on, do not let the setting prevent you from speaking up.
Former District Judge
Object. Instruct your client not to answer a prohibited question. If the dispute rises to the level of judicial intervention, call the discovery hotline or the judge’s chambers (check local rules) for an immediate resolution/ruling. Of course, some battles are not
patrickkeel.com
