The reporter’s transcript is an important document before, during, and after a trial. The transcript is used for trial preparation, briefs, impeachment purposes, and, of course, for appellate review. Property, freedom, and life all can depend on a clear and accurate record. Many cases lost in trial courts are subsequently won on appeal because the record was carefully made in the trial court.
Here are some reminders and tips to help you make a clear record. Many of them are common sense, but they are precisely the kinds of things that often are overlooked or forgotten during a trial or a deposition. We hope this will help you remember to take the greatest care in making the record.
You as Record-Maker
The responsibility for preserving the record rests with the court reporter, on whom the bench and bar rely with confidence to accurately report the judge, counsel, and witnesses.
The primary job of making the record belongs to the attorneys participating in the case. You, as counsel, may have an excellent theory and a winning strategy, but you must match your preparation with a careful regard for the record so that that record will accurately and completely reflect the merit of your case to the appellate judge.
Awareness of the Record
You are already aware of the effect your courtroom methods have on the jury, but you also need to keep in mind that your words, as reported, may be read by opposing counsel, appellate judges, legal scholars, future generations of law students, and maybe even by Supreme Court justices.
When you keep this fact in mind, you take a big step towards creating an effective record that will suit your purposes and your requirements. Remembering that your words are being reported for the record will help you choose your words more carefully and state those words more clearly. You will tend to eliminate duplication of statements and repetition of questions. The incidence of false starts will drop dramatically, and you will tend to present your arguments and evidence more logically. In short, you will come across as a true professional, not only in the transcript but in court as well.
What’s in a Name?
There are two things that are invariably true about names: Everyone has one, and no one likes it when his or her name is misspelled, mispronounced, or confused with someone else’s. Names like Randy/Andy, Terry/Perry, Morris/Norris, Hoffman/Coffman, etc., sound very much alike and can be mistaken by the reporter and others as well, especially when they show up in the same case.
To remove all doubt, proper names should be spelled out or enunciated slowly and clearly. And even if you pronounce it slowly, chances are the reporter will ask you to spell it anyway. Consider, for example, the case of Mr. White – or was it Mr. Wight? No, it was Weit . . . or maybe it was Wyatt . . .
Know your ABC’s and 1,2,3’s
Another common problem is assuming everyone present is familiar with the acronyms and jargon that you are using. As one attorney put it, “Until I started working for the government, I thought “Acronym” was the capital of Ohio!”
To avoid serving up alphabet soup, it’s important to use the full term the acronym stands for. If you spell out acronyms, be sure to clarify letters that sound alike, such as M and N, B and D, V and F, and use an identifying name to clarify, such as M as in Mary, N as in Nancy, etc.
Numbers are no less subject to confusion than names or letters. For example, “two twenty” can be 2 hyphen 20, two hundred twenty dollars, two dollars twenty cents, or two twenty o’clock. When you say “forty-one-oh-six,” you might mean, 41.06, 4,106, or 40,106, all with, or without, a dollar sign. If you say “October-nineteen-eighty-six,” is it October 1986, or October 19, ‘86?
To avoid this kind of confusion, state figures in full, followed by the subject they represent. For example, “forty-one dollars, six cents,” “two point twenty percent,” “six-oh-five p.m.,” or “October nineteenth, nineteen-eighty-six.” If the witness gives an ambiguous answer, you can follow up with a clarifying question like this:
Q. How much did it cost to have it repaired?
A. Eleven twenty.
Q. Is that $1,120?
A. That’s right.
Remember: Speed Kills
In an average day, a court reporter will write anywhere from 30,000 to 50,000 words. It is best for everyone that this not occur in the first two hours of a proceeding.
As with other aspects of life, the pace of legal proceedings has picked up over the years. People simply talk faster than they used to. The average rate of speech now is estimated to be 180 to 200 words per minute, or about two and a half words per second. In the course of a deposition, it’s not unusual for speech to approach double that rate. Above 225 words per minute, speech tends to become slurred and indistinct, making it more likely that words will be misheard.
Reporters are skilled professionals trained to write at high rates of speed, but this skill, like the engine in your car, isn’t there to be utilized at top speed every time out. The points you make with your questions look and sound better when you speak clearly than when you are racing out of control, near the upper range of comprehension.
And while I’m on the subject of the reporter’s comfort level, let me remind you that reporters need regular breaks. It’s usually better if you pick a good time in your questioning to break rather than pushing the reporter, witness, or other counsel to the point of desperately calling for a break right in the middle of an important point you are trying to make.
Through training and continuing education, shorthand reporters, like lawyers and judges, acquire a broad general knowledge; however, in this world of advanced technology, it is difficult to be familiar with every possible subject matter. You have the advantage of having prepared your case and thus have become familiar with its specialized terminologies.
You can help to ensure an accurate transcript by providing the reporter with a glossary of technical terms, if your office has compiled one in preparation of this case. Often,
court reporting offices compile case-specific glossaries and can provide a copy for you to furnish reporters at out-of-town depositions to ensure consistency of name and term spellings.
During the course of a deposition, you may have occasion to quote from previous depositions, exhibits, or other written materials. If possible, supply the court reporter with a copy of the document from which you are quoting. When quoting from documents, remember that if it is important enough to quote, it is worth doing so in a fashion that can be heard and understood by everyone, especially the reporter. That being the case, make every attempt to read quotations at a reasonable pace and clearly delineate, by saying “Quote” and “Unquote,” where the quotation begins and where it ends.
Off the Record/On the Record
When, and how, to go on the record and off the record can sometimes be confusing.
ATTORNEY 1: Off the record.
ATTORNEY 2: No. I don’t want to go off the record.
ATTORNEY 1: Well, this is my reporter (indicating reporter).
The “this” the attorney is referring to is, in fact, an officer of the court, impartial, and no one’s property. The reporter’s duty is to prepare a full and accurate record of proceedings. Only when ALL counsel agree will the reporter stop reporting the proceedings. At this point, the reporter will indicate in the transcription a parenthetical such as (Off the record.) The reporter will not start writing again until directed to do so by all counsel.
Sometimes, though, a discussion remains off the record beyond counsels’ intent. This can be avoided by remembering to tell the reporter to go back on the record. If an important event occurred while off the record, you should verbalize that when you go back on the record; for example: “While we were off record, the witness had an opportunity to confer with her attorney.”