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100% harder to defend
Clarification: not the actual defending - it’s then mostly out of your hands of course - but the witness prep that goes into it is harder. Assuming you’re always or nearly always representing defendants, anyway. By contrast, taking depos is the most fun part of the job!
I would rather take a deposition than defend one. Especially when opposing counsel is a dick. That said defending a depo from a Co-Defendant is far less stressful, especially when we’re aligned against Plaintiff and the cross-complaints are indemnity claims.
Chief
I find taking harder, because I have to think in the present and also several steps ahead. When defending my brain hurts by the end, but once I get a feel for the person taking the depo I don’t feel like I’m trying to do two things with my brain at once.
Depends a bit on the deponent though. Taking expert depos makes me want to set my brain on fire. Taking the depo of a third party that isn’t angry at my side is less stressful than defending many depos.
Defending is stressful. Taking is fun.
Totally agree
I’ve probably done 100+ either way. My opinion: Defending is much harder because the stakes are higher. If things go south while defending, you could lose your case quickly. If things go south while taking, you may lose an opportunity but you’ll probably have another one with a different witness (or at trial).
Exactly this
Defend. Especially if your corporate clients (like mine) want a pretty detailed recap of the depo before the transcript is out!!
That’s what the rough transcript is for!
Taking is way harder, especially if you’re limited in time like with federal depos. Defending is basically just enforcing rules of evidence through timely objections. However, defending feels much more taxing because you’re constantly trying to make sure your witness is sticking to the strategy.
More mentally taxing in the moment to take it because you have to constantly think of new questions and ways to get an uncooperative witness to reveal information. But I think preparing to defend a deposition especially a corporation PMK witness is more taxing overall because of the witness prep involved and because the stakes are higher if the witness says something bad.
I have never left a deposition that I’ve defended with sweat stains, red eyes, and utterly exhausted. Only taking depos has that affect on me.
Taking a depo takes a loooong time to prep. But once I’m in the depo, I ask my questions, follow up, and frankly don’t feel too personally invested in what they say.
Defending doesn’t take as much time hours wise, but sitting in the depo with no control over what a witness is saying is hell on the nerves.
Depends on the depo. I generally think taking them is more often than not harder because you have to cover a lot of substantive ground. However, defending can be sometimes more difficult. I find that 30b6 witnesses can be hard to defend (can’t object based on lack of personal knowledge, often hard to keep the other lawyer from staying in the scope of 30b6 questioning), along with former managerial employees (murky and unclear law around A/C privilege, when and to what it applies).
I’d add that some witnesses are incredibly difficult to prepare (doesn’t care, doesn’t understand the case, has a temper, etc), and that’s part of defending a depo.
For depo practice tips, be sure to watch: https://www.youtube.com/watch?v=G-6eynsaZ0U
Defending fact witness depos is much harder than defending expert ones because experts are usually more seasoned/less likely to go rogue, etc. Fact witnesses often ramble off-topic and fall for OC’s traps.
Taking depos does require more prep up front, but the actual taking of the depo to me is much less stressful than defending.
Taking depos by a long shot. Defense is ridiculously easy.
Taking stresses me out more. Defending, there isn't much in my control, I tell myself and my client we can prep but most of the time we just got to ride with it and we're going to feel like shit after even if it wasn't as bad.