With all the parties and get-togethers over the holidays, I had the good fortune of running into an old friend and client. I had not seen her for the longest time, and we quickly reminisced about the first time we met. I was reporting a deposition at our office and her office was called and asked, “Is someone from your firm going to appear today at the deposition?” It was quickly obvious that there was a miscommunication and that they needed to send someone over ASAP. Well, she quickly drove over and arrived for the deposition. It wasn’t until after everyone said their goodbyes that she turned to me and told me that it was HER VERY FIRST DEPOSITION.
Thinking back on her performance, for lack of a better term, I was truly impressed. Even though she probably was handed the file and had to rush over, she was collected and handled herself like an old pro. She asked great questions, was mindful of the record, and did her job. Obviously I am no pro at cross-examination skills – although I have seen some of the best in action – and would never make suggestions in that regard, but I do have tips I would like to share with attorneys, new to the deposition world or otherwise, that make for a better record in the end.
First, let’s make everyone’s job easier by providing the court reporter and their office with a full copy of the notice which includes any request for video — required per code — any document production, and the proof of service. This notice will give the reporter your information as the noticing attorney, the caption, names and spellings of the parties, and the reporter will also know who to expect in attendance, including any interpreter that may be necessary. If this matter is to be in the reporter’s conference room, it also gives them an idea on the size of the room needed.
Now you have arrived for the deposition. If there is not a videographer present, the court reporter prefers to sit at the end of the conference room table with the witness next to them on one side and the noticing/questioning attorney on the other. These things do vary depending on the room layout, whether it’s at a doctor’s office, et cetera. Just be sure that the reporter can see and hear the witness. What’s that line again? “Nobody puts Baby in the corner.” Well, you can’t put the reporter in the corner and expect him/her to do their job.
At this point you have introduced yourself, handed the reporter a business card and confirmed they have a notice, and you are ready to proceed. The reporter will then swear the witness and you will launch with probably an admonition and questions. In my experience most witnesses are nervous and nervous people tend to speak quickly. It’s also my experience that most attorneys could recite an admonition in their sleep. However, usually the witness will follow the lead of the questioning attorney and this can make for a very fast start. So let’s start off slowly so the reporter can warm up and acclimate to the voices in the room. Not to worry, though, reporters understand when the questioning becomes intense and speed is part of the strategy to elicit information, but at the beginning it is helpful to take a little time.
Once questioning begins, it is obviously important to not speak over one another, not to mumble, put your hands over your mouth, et cetera. Court reporters would prefer not to stop you and have you lose your train of thought, but their obligation and duty is to the record. If the witness has a thick accent or cries or becomes hard to understand, be mindful that the reporter may need it repeated or it may be wise to restate what the witness said in the next question. At times it takes a team to understand a witness and make the best record.
Is this witness an expert in a specialized field? Is the testimony technical in nature? If so, help the reporter to get the spellings and clarifications he/she needs. We had a client for years who did medical malpractice work. It was commonplace for him to walk in a deposition with a handwritten list of terms that would likely come up. Of course I was familiar with these terms and understood them, but it was so helpful to know before the start of the deposition what I could expect and to come up with a one-stroke brief for “coccidioides immitis.” A one-stroke brief is something a court reporter can create by programing their software so when they stroke (or press down) a certain combination of their steno machine keys at the same time, the software interprets it as a specific word or phrase. As a court reporter increases the number of briefs they have, they become more efficient and accurate both during the deposition and in editing the final transcript afterwards.
Just a few things I would like to mention about quoting a document or reciting numbers. Please slow down and enunciate. When reading something for the record, most people will speed up. You may think, well, I will give the reporter this document later and it can be filled in. We need to report EVERYTHING you say and not guess if you quoted something accurately. The same goes for numbers. Numbers can be very challenging for a reporter so be sure to slow down and be clear on what the digits represent: dollars, dates, account numbers. There is nothing worse than deciding how to write “twelve one fifty.” Is it 12-1-50 or $12,150 or Account 12150?
Although I have definitely written hours on end in depositions when necessary, it is best for all to take a break at least every two hours. You may want to consider a shorter period of time between breaks if the subject matter is difficult or the setting is tense. Of course, you need to pay attention to the reporter’s demeanor as well. If he/she starts coughing or goes for a drink of water, pause for a moment. Trust me when I say there is nothing worse for a reporter than trying to subdue a cough and not have a moment to take a drink or grab a lozenge.
If you plan to introduce exhibits, it is best to bring a copy for the reporter. If you are at a law office or reporting firm, copies can be made, but copying documents at outside offices may not be possible. It is best to come with the copies already made. When presenting an exhibit to a witness, please first set it next to the reporter to be marked before continuing on with the questioning and definitely before marking the next exhibit. If you hold it up to hand it to the reporter and you keep speaking, the reporter cannot lift her hands from the keyboard. It may seem obvious, but I would be a rich woman if I received a dollar every time that happened during my career. Once marked, the reporter will note it as well to keep track of the numbering or lettering. At the end of the deposition – I suggest at every break – the exhibits are collected and maintained by the reporter.
Reporters report the spoken word and not gestures. If you have a witness that points to a direction or a body part, be sure to state that for the record. If before answering a question the witness leans over and whispers to his attorney, the reporter may note an off-the-record discussion, but you may also want to state something along the lines of “Now that you have had an opportunity to confer with counsel…..”
If remarks need to be made that are clearly not for the record, whatever those may be, it is best to go off the record first. Once reported, and without the agreement of all counsel present, those statements will stay on the record. You would hate to have some random discussion included in your record that you did not intend.
From a reporter’s point of view, I can tell you that there is no better feeling than working with true professionals that are mindful of the record. When these practices are used, it makes for a better and more readable transcript. Reporters are officers of the court and a critical part of the legal profession, and we want to deliver the best transcripts possible.
In closing, I hope this guide and these tips are helpful to not only the new litigator but also perhaps a refresher for the old pro.