Making A Clear Record

Excerpts from a beautifully written article by Max Curry -- Thank you, Max.

The Challenge

Creating a logical and clear record of the case through depositions/court/video testimony that supports their argument.  Cases are won and lost on appeal based on the clarity of the trial transcript and/or deposition testimony.

Overlapped Speech

Overlapping speech is counter productive to a clear and concise record.  If a witness begins to answer the question before you complete your 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 complete and accurate transcript of your testimony."

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, 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 the record.

Speed Kills a Transcript

Speed kills a transcript where accuracy counts.  The reporter is hearing and writing at about the rate of 2 1/2 to 3 words per second, which is about 160 words per minute.  In an all-day matter, that equates to 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, 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 the transcript is maintained.

Objections for the Record

Do not whisper 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 in a court setting, an attorney may hire a reporter for his/her specific case 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 rights for equal access to the transcript.

It is your obligation as counsel to know what your answer will be at the time the question is asked by the reporter.  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 hearing.

Spellings

When employing a reporter in complicated matters, medical malpractice, product liability, intellectual property, etc., please provide a word list of common acronyms, often used abbreviations, proper spellings of key players and business names.

Nonverbal Cues

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 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 on nonverbal cues."

Otherwise the  testimony will appear on the record as, "(motioning) (indicating) (nodding) (demonstrating)."

Number Clarification

Be aware that how you say numbers is very important.  The reporter does not know what you mean when you say, fifty-five-O-four...  Well, is it 5,504?  is it 55.04?  or is it 50,504?  The number 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.

Examples:
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 the record is clear.  As an 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?"
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.

Deadlines

if you are aware you will need your transcript in an expedited timeframe, make sure the reporter is on notice ahead of time.  Proper communication will lend itself to better preparation by the reporter in producing your transcript in the desired timeframe.

Clarification by the Reporter

The reporter is the guardian of the record and there as a 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 necessity in order to perform their job.  Please understand, they are doing this to provide you with the best record possible.  A professional reporter will not interrupt unless they absolutely have to, so please address the issue and help resolve it.

Video Depositions

In a video deposition, the reporter's job is even more heightened, hanging on every word as well as gestures and non-verbal cues.  Overlapped speech is even more critical.  Make every effort to help control the situation by not allowing over speaking  to make sure your video record and printed record are clear and concise.