0 Comments Published on March 22nd, 2014 by Thomas Allen
Transcript Awareness (video transcript)
“Plantiff’s deposition trasncript reveals a somewhat confusing exhange…”
– Cosme v. Furman, 769 F. Supp. 2d 110 (W.D.N.Y. 2011)
“This testimony…is also unclear from a wider perusal of the deposition transcript exactly which document [the witness] was looking at.”
-Siemens Fin. Servs. Inc. v. Stonebridge Equip. Leasing, LLC, PB 09-1677 (R.I. Super. 2013)
“A confusing exchange took place during Ms. Gardner’s deposition. She was asked to look at two faxed documents.
Ms. Gardner pointed to one of them and said, “Whose account number is this right there? That’s who I sent it back to.” The parties do not agree which account number Ms. Gardner pointed to, and the deposition transcript is unclear.
-Gardner v MGC Mortg., Inc., 2:12-CV-131-WKW (M..D. Ala. 2013)
This AgileLaw deposition academy video will help you avoid being on the tail end of court decisions like the ones listed above:
Today’s topic is transcript awareness. The transcript is the most important part of your deposition because when the deposition is over you will rely on the transcript for your summary judgement motions, motions in limiting, and your trial preparation.
So its vital that while you’re taking your deposition, you remain mindful of the fact
that the transcript is the ultimate result of the deposition and you work during the deposition to ensure that the transcript is easy to read and understand. Even if you have the most amazing admissions from the other side’s witnesses in their depositions, those admissions are useless if they’re not clear when you read the transcript. Now in this video we’re going to review some of the most common errors lawyers make when they’re taking a deposition and how those errors can make the transcript difficult or even impossible to use, and then we’ll talk about the best ways to avoid making those mistakes in your depositions.
In this excerpt I asked the witness about the spilled milk in the teacher’s classroom. Let’s listen in:
Q: Atlas, were you in the classroom when the milk was spilled?
A: (Inaudible), nods
Q: Who did you see?
A: I saw David…
Q: David Green or David Anderson?
Q: Who else?
A: Michael, Bob, and Mitch.
Q: Are those the brothers, or they aren’t?
A: That’s right.
Q: Who were the teachers in the room?
A: I know that a teacher was in the room because she was singing a song…
Q. Was it the Homeroom teacher?
A. Do you mean Ms. Neally?
Q. I do.
A. You do? No. I don’t think so.
Q. Well what I don’t understand is how you did not see who spilled the milk. Because if you were.
A. I told you 1,000 times
Q. the classroom is not that big and
A. I just turned
Q. even if
A. I didn’t know.
Q. Ok ok.
Q. I’m showing you Exhibit 1, which is a map of the classroom. Show me where you were on the map. When you discovered the milk was spilled.
A. I was here.
Q. Up there?
A. Yes. Here.
The first problem comes immediately on lines one and two when our witness(his name is Atlas by the way), responds with “uh huh” and nods his head.
- Nonverbal responses or informal words like “uh huh,” “uh uh,” head shakes or nods are often either not recorded on the transcript at all or they are recorded incorrectly.
- Therefore it is critical that when a witness responds this way you remind them to respond with a yes or a no.
Generally you should repeat the question again and then have the witness respond with a discernible word or sentence. That process will give you a clean Question/Answer on the transcript.
The second problem comes on lines 7 through 10. The deponent’s response to my question is not clear because I ask a compound question. Let’s watch that clip briefly in the video: you will see that I start my question and then respond to Atlas’ non-verbal answer and asked a second question. The nonverbal response is not recorded in the transcript so the result is a compound question and a confusing answer. This exchange illustrates two different problems:
- I respond again to a nonverbal gesture by the witness.
- I asked a compound question and it is not clear by reading the transcript alone which question Atlas is answering
If possible you should always avoid compound questions because they can create confusion when reading the transcript later.
The third problem comes on the bottom of the first page Lines 14 through 17. In this exchange I ask a question and then Atlas responds with a question. I then answer Atlas’s question, he responds with a question and then an answer. If you read the transcript, it is apparent that this part of the transcript is very confusing.
You should try to avoid answering the witness’ questions and getting into an exchange where the witness is allowed to ask questions and then answer.
The next problem comes at the beginning of the second page when Atlas and I begin talking over each other. In this situation it is almost impossible for the reporter to accurately transcribe what multiple people are saying at the same time. Even if the court reporter is able to accurately transcribe what is being said, the resulting transcript will be almost impossible to use.
The final problem is perhaps one of the most common errors both in depositions and in trials. I ask Atlas where he was, and he responds ‘right here’ and points to the exhibit. Unfortunately when you read the transcript, we have no idea where ‘here’ is.
Ask the witness to physically mark on the exhibit where they were, so you can look at the exhibit and see the witness’ mark.
- If you are using the AgileLaw deposition software, the software automatically creates a copy, and keeps both the original and the witness’ copy, showing where the witness marked.
- If you do not have the AgileLaw deposition software then you must describe exactly where the witness is pointing, so when you read the record or transcript later on, you can tell exactly where the witness indicated.
Recap of Common Transcript Mistakes
- 1. Nonverbal & Informal (uh-huh) responses
- 4. Multiple People Talking at Once
- 2. Asking Compound Questions
- 5. Failing to Indicate or Speak Where Witness Marks
- 3. Answering the Witness’s Questions
Here are some tips to help you stay aware of the transcript
- Practice. When you are in a normal conversation work on making a mental note when the person you are talking to responds nonverbally or with an un-huh. If you work on picking it up in your everyday conversations then it will be easy during a deposition.
- Pace yourself during the deposition. Make sure you process the witness’ answer before you proceed to the next question. If you work methodically then you are more likely to pick up on a response that may be unclear on a transcript.
- Use Video. The video will give you a safety net if the transcript is unclear. And it will show the witnesses’ demeanor, which may be relevant at trial.
- Use Streaming Transcript Technology. It allows you to read the transcript in real time. It takes getting used to reading what you say in real time, but it is a great way to stay aware of the transcript.
- Have the witness mark on an exhibit whenever they indicate a location. The mark will create a physical record of where they have pointed. and will allow you to backtrack and see what they are indicating when you are reviewing the transcript later.