Note: AgileLaw's Deposition Academy also has a short video lesson on transcript awareness.
The single most important output of a deposition (besides a settlement) is the transcript. The transcript is crucial as you'll use it for summary judgement motions, motions in limiting, and your trial preparation. As such, your strategy when deposing witnesses should include a clear picture of what you would like the transcript to say.
There are 5 things you can do to royally screw up your transcript and help you lose your case:
1. Allow nonverbal or informal responses.
In the course of a conversation, it is amazing how much is communicated without saying a clear word. Humans communicate like this without even realizing it. This can hurt you in a deposition though. A witness's nodding yes or no may not make it to the transcript as a "yes" or "no." Likewise, someone responding 'uh huh', or 'um hmm', could mean two completely different answers depending on the tone of that person's answer. Always insist on a clear, verbal response when your witness gives nonverbal or informal responses.
2. Ask compound questions.
You can set yourself up for failure if you ask the questions the wrong way. For example, "Did you go to the store, or not?" answered by "Yes" is going to cause confusion in the court room and give opposing counsel a free ticket to object. It may be obvious to you in the deposition that "Yes" means "I did go to the store" but the other side can make a compelling argument that "Yes" was the answer to "or not." Avoid compound questions by asking logically simple questions.
3. Answer the witness's questions for them!
a.) If you ask unclear questions, you'll find yourself in the awkward position of having the deponent asking YOU questions!
You: "Did she cheat on him?"
Deponent: "Who exactly are you talking about?"
However this conversation goes, exchanges like this are going to cause confusing transcripts that are contested later.
b.) Another possibility is that the witness is intentionally being dodgy.
You: "Does your office have a fax machine?"
Deponent: "What do you mean 'my office'?"
Instead of answering the witness's questions, back up and restate the question as specifically and clearly as you can.
4. Multiple people talking at once.
There are a multitude of reasons people will talk at the same time, whether they are arguing, interrupting, or trying to correct. But just imagine what the court reporter is capturing. At best he/she is capturing one person's comments. At worst he/she is capturing bits and pieces of the conversation. Even if all the words are captured, the nature of the transcript means it will be impossible to tell what was said first or in what order. When multiple people are talking at once, back up, review the transcript, and if necessary, redo the conversation before moving on.
5. Don't clarify gestures.
I've already shown how nonverbal language is confusing. One specific subset that will cause a lot of confusion is gestures such as pointing. If you ask a witness to point to where the scene of the crime happened, if you're not careful, this won't be captured correctly on the transcript. When the witness's answer necessitates body language such as this, state aloud what is happening to make the transcript crystal clear.
Taken together, these are 5 great ways to screw up your deposition and your case!
To learn how to avoid these mistakes, watch the video at this link: Transcript Awareness