Whether you are using your deposition for education about the opposing party’s case or to lock down statements or to preserve testimony for trial or to size-up a witness, you will want your transcript record to be clear and understandable. Knowing that depositions are critical in securing evidence and recognizing that they can be one of the most expensive costs related to pretrial discovery, particularly when a deposition is being noticed to elicit testimony from an expert witness, we, as court reporters, would like to respectfully share some of the more common snares we have encountered in producing countless transcripts over the years, and offer modest suggestions that will assist you in attaining a usable transcript as you craft your record.
Make sure your court reporter is positioned within the room where he can not only hear clearly what is being spoken but also has a clear line of sight to see the witness and counsel.
Simply stated, a court reporter cannot take down accurate testimony if he cannot hear clearly what is being said. If the court reporter cannot get what is being said on the record, it doesn’t matter how well prepared you are, how well you have crafted your questions and how skilled you are in drawing out responses, your certified record may be falling short. It is recognized that hearing and listening are not interchangeable terms. Having said that, recognize that a professional court reporter needs to focus on what is heard to assure that the dialogue being documented on the record is valid. Daniela Rohan, an Executive Coach, cites the work of both Mehrabian (1981) and Birdwhistell (1970) when she tells us, “It is important to understand that deep listening is not only listening to the words, but being aware of all that goes on with the person in front of us and the entire space in which we are.”
Most court reporters take cues from a person’s lip movements, much like a lip reader, as well as body language. Gathering all those clues and the verbal words themselves help us discern what is being said and avoid the inevitable distractions from crinkling papers, whispers among participants, noises from both in and outside the room, hunger pangs, and a litany of other issues that may lead to a challenging take-down of the record.
Create a clean and usable record.
Basic deposition etiquette is one speaker at a time. Multiple people talking at once creates a host of difficulties for a readable transcript. When participants overlap, court reporters use dashes to offset the interruption. While you, the questioning attorney, may be following the testimony perfectly and think that you are securing important information for reading back later to a judge or jury, the transcript may not read clearly because of the jagged format, and it could leave the triers of fact with a completely different impression of the exchange. Overlapping also raises the speed at which court reporters must write. If the question-and-answer volley was already at a brisk pace and now you add overlapping objections and/or questions and answers, there’s the possibility of overwhelming the court reporter, and he will be forced to speak up and request that everyone speak one at a time. For lawerly information on learning the art of taking good depositions, check out the ADLA’s Tips for Young Lawyers: Depositions 101.
Verbalize for the record any non-verbal communications from the witness or other participants that may impact how the written answer is interpreted.
Beyond the uh-huh and huh-huh quagmire that needs clarification on the record, there is voluminous non-verbal information that is being conveyed during testimony. Head shakes and nods, as well as shrugging shoulders are reported by a skilled court reporter. However, court reporters are impartial guardians of the record; and as such, court reporters do not lend an interpretation to nonverbal communications. Counsel may want to audibly describe other gestures for the record as well. The interpretations of non-verbal communications are left up to the reader of the transcript unless counsel clarifies the non-verbal communications on the record. Witnesses who non-verbally identify key details from documents or drawings will leave your record silent except for a parenthetical “indicating,” unless such indication is audibly described for the record or is designated in some fashion. The examples above are assumed to be congruent; meaning the witness’s words, tone, and body language match. When there is incongruence among a witness’s body language, tone and words, counsel may decide to incorporate the observation into her questioning. This is counsel’s decision. A court reporter will not put any descriptions of body language into the transcript. If you know a particular witness may make use of negative body language during his testimony and you want to have all of the witness’s communication preserved, you may want to consider securing a legal videographer for the deposition to complement the official written record of the court reporter.
One last thought on non-verbal communication. Some counsel have taken to the practice of using their finger in gesturing an objection. This way of registering an objection is very risky. The court reporter may not be looking counsel’s way to see the gesture or the court reporter may mistake another gesture for an objection. Most court reporters will request this method stop as soon as it is deployed. If the court reporter lets this practice continue, what will be in the record? If the reporter inserts the word “objection” and it wasn’t spoken, the integrity of the record is called into question. If the reporter inserts a parenthetical describing the gesture, does that protect your client? Lastly, gesturing does not afford questioning counsel the opportunity to remedy a question, if she so chooses, if she did not see the gesture meant as an objection. On behalf of all court reporters, we respectfully ask counsel to nip this practice in the bud.
In conclusion, as trained professionals, we are silent during a deposition or proceeding. So if your stenographer brings something to your attention, do your best to help resolve whatever may be limiting the ability of the reporter to produce a true, accurate and complete record of the deposition or proceeding.