One of the challenges attorneys face in their professional life is creating a logical and clear record for their case through deposition testimony and/or legal videography, ultimately translating that information through the witness stand into intelligible information before a judge and/or jury. Every attorney knows how imperative it is that their points and facts be clearly understood by the trier of fact and presented in a clear manner that supports their argument. Many cases are won or lost on appeal based on the clarity of the trial transcript and/or deposition testimony.
What follows are some common sense suggestions from a court reporter’s point of view that will help in producing the clearest, most accurate record possible for all proceedings.
Overlapped Speech … Ugh, Don’t do it!
Allowing yourself or witnesses to be drawn into the fray of overlapping speech is counterproductive to your end – a clear and concise record. If the witness starts to answer the question before you complete the question, then allow them to finish. Once they’re done, say, “I need you to please allow me to finish my question before you answer. Please don’t anticipate where I’m going with my questioning. Listen to my question and respond appropriately, as this will allow for a more complete and accurate transcript of your testimony. Thank you.” Now, ask your question the way you intended, having put the witness on notice to wait for the completion of your question. As reporters, we would ask that you do this every time that a witness begins to interrupt your questioning. Otherwise, at best, your transcript will be dashed up and difficult to follow. At worst, the reporter may have been unable to understand the overlapped speech … leaving holes in your record.
Spellings, Thank you!
In testimony of complicated matters, the reporter’s job can become a minefield of jargon with which he/she is unfamiliar. When employing a reporter for a new complicated manner, including medical malpractice, product liability, intellectual property, etc., make sure you or your staff provides the reporter with a word list so they can familiarize themselves with the terminology of the case. This will provide you with a more timely produced and accurate transcript. A great word list would include common acronyms or abbreviations that may be used repeatedly in the case, proper spellings of key players in the case, and business names.
Identifying Nonverbal Cues for the Record
When witnesses motion or indicate with their hands on the record (i.e., “I was right here,” “The car flipped around like this,” “There were this many of us,” etc.), it is imperative that the attorney follow up with, “Now, when you motioned like that, please explain for the record what you meant. The record doesn’t pick up nonverbal cues.”
You would be surprised how often attorneys let things like this slip right by. Later, however, no one knows what was meant by the phrase. When a witness makes any kind of nonverbal motion or gesture on the record, it is imperative that you as the attorney ask for immediate clarification of what the motion meant. Otherwise, it will appear in the record as, “(motioning) (indicating) (nodding) (gesturing) (demonstrating),” which all in plain English means a lot of nothing to a jury or judge reviewing the transcript. As reporters, it’s all that we’re left with as unbiased guardians of the record when you, as the attorney, do nothing to clarify the transcript. Don’t let these golden opportunities for clarification pass you by.
Numbers can be a nebulous state of confusion for a reporter, especially with the way people state things without thinking of how it will actually look in print form. An example would be when you say fifty-fiveo- four. Well, is that 5,504? Is that 55.04? Or is it 50,504? It can be interpreted multiple ways, and especially difficult for the reporter who is hearing this and writing it at 2 1/2 to 3 words per second. They have to make the best interpretation of what is meant in a split second, only to later in the editing process evaluate and attempt to determine from exhibits what was actually meant.
Some other Samples:
Q. When did the incident occur that the suit involves?
A. Twelve thirty. (Is that time, 12:30? Is it a.m. or p.m.? Is it a date, 12/30?
Q. What are the costs incurred in this matter?
A. One fifty. ($1.50, $150, or $150,000?)
Make sure you’re making a clear record by following up on such occurrences for clarification of what was meant. Even better, as the attorney, you can phrase your question in such a way that the response is very clear. For example, “At what time in the evening did the incident occur that the suit involves?” The witness’s response of twelve thirty could then easily be translated as 12:30 in the evening. Clearly work out the questions in your head ahead of time so that figures are clearly defined in the transcript.
Unfamiliar Accents & Dialect
A professional reporter is trained and through experience becomes attuned to the accents and speech patterns of many dialects and accents. However, these variances in speech pattern can cause a fraction of a second delay in processing the word from thought to action and writing it on the stenographic machine. For you and the court, it’s generally sufficient for you to get the gist of what’s being said or general thought being conveyed by the witness, but the reporter has to hear and report every single word. You can greatly assist in this process by not crowding the witness’s answer with your next question. Give them time to finish and the reporter that extra millisecond needed for the production of a fluid transcript.
OK, I heard you, you want to go off the record, but your opposing counsel doesn’t agree. What am I, as the reporter, left to do? You may have hired me, but my obligation at a deposition is to the record and to the court. You may be the reporter’s client, but don’t put the reporter in a precarious and uncomfortable situation. All counsel in a matter being reported (outside of court) have to agree to go off the record in order for the reporter to stop writing. If even one counsel involved in the matter voices a disagreement with going off the record, the reporter is obligated to continue to write and should continue to write until all parties agree to go off the record. Also, if an attorney asks to go off the record and the opposing counsel doesn’t state an objection, it is customary for the reporter to stop writing as an understood acquiescence on the opposing attorney’s part. If you do not wish to go off the record, state that plainly for the record and the reporter will continue to write.
In a courtroom situation, on and off the record is determined by the court, and the court reporter will look to the court for all such determinations in that matter.
Speed Yikes! You’re Killing Me … and Your Transcript
Speed kills in a transcript, especially where accuracy counts in real time reported matters or if you’re planning to request a rough of the transcript afterward. As stated previously, the reporter is hearing and writing your matter at about the rate of 2 1/2 to 3 words per second, which is about 160 words per minute. It is estimated that in the course of an all-day matter that the reporter will write somewhere between 40,000 to 50,000 words. If the matter is getting heated and someone gets excited or just on a roll, speeds can go over 250 words per minute. At about 200 words per minute, however, speech tends to become slurred, words run together, people will swallow their endings on words, making it much more likely that words will be misheard or missed.
Help the reporter produce the best record for your case by controlling the pace at which the matter is moving, ensuring the accuracy and integrity of your transcript is maintained.
Objections for the Record
Please don’t resort to whispered objections on the record, or even worse, head nods or other non-verbal gestures toward the reporter. You want to make sure your objection is clearly and accurately preserved on the record. So, state the fact that you object clearly, the grounds for the objection and where permitted, your argument for the objection.
Sharing Per Diem in Court
Tennessee has specific precedents that in a court setting, an attorney may hire a reporter for his/her specific matter in court. However, if the opposing counsel wants access to a copy of the transcript, they must share in the per diem or potentially forfeit their right to a future transcript of the reported matter. Many courts have upheld this precedent and it is prudent upon counsel to understand the necessity of preserving your and your client’s rights for equal access to the transcript in court matters.
A properly trained reporter knows to ask whether you are sharing in the per diem/ appearance fee in a matter that he/she has been retained to report. It is your obligation as the counsel to know what your answer will be at the time the question is asked. Decide ahead of time how you will proceed and let the reporter know when they inquire, or even better, letting the hiring attorney know ahead of time that you will be sharing so they can notify the reporter at the time of booking and the reporter can simply verify that information with you at the time of the hearing.
If you are aware you will need your transcript in an expedited timeframe, make sure the reporter and/or reporting agency is on notice ahead of time. Proper communication will lend itself to better preparation by the reporter and agency for making sure the reporter is capable – in skill level and caseload – of producing your transcript in the desired time frame.
Clarification by the Reporter
The reporter is the guardian of the record and as such is there as the silent professional in the deposition conference room or in court. If the reporter speaks up regarding some difficulty, they are only doing so out of an absolute necessity in order to perform their job. Please understand, they are doing this to provide you with the best record possible. I assure you, a professional reporter will not interrupt unless they absolutely have to, so I urge you to address the issue and help resolve it.
In a video deposition, the reporter’s job is even more heightened. Remember, the reporter is hanging on every word said as well as gestures and non-verbal cues. The overlapped speech portion highlighted previously in this article is even more critical in a video deposition. Make every effort to help control the situation by not allowing over speaking in a video deposition so as to make sure your video record, as well as the printed record is clear, concise and easily understandable.
Also, ensure the videographer is a welltrained professional. A recklessly made or poor quality video may be disallowed as evidence or – if allowed – may hurt your case more than help it.
Incorporation of these suggestions and techniques can help facilitate a much clearer record for all involved, which I believe will lead to more success in future legal proceedings. Max Curry, B.C.R., RPR, LCR, CRI, CCR,