Making the Record

Vox audita perit, litera scripta manet*

*The spoken word vanishes; the written word remains

The responsibility of the court reporter is to preserve the record an attorney creates. You, the attorney, may have an excellent theory and a winning strategy, but your strategy is only as good as the record that supports it. This four-part series will provide important considerations to ensure that the record you create during a deposition or other on-the-record hearing will be useful for trial preparation, motion practice, impeachment, or appellate review.

Speak One at a Time

In order to ensure that deposition and other hearing transcripts are complete and accurate, all participants must have the discipline to speak one at a time. While this may lengthen the time it takes to complete the proceeding, the consequences of an incomplete record are far worse: the loss of case-critical testimony, the inability to appeal evidentiary and procedural errors, or the cost of conducting the same proceeding twice.

The Perils of Zoom Proceedings

Have you ever seen someone’s lips moving during a Zoom proceeding, but the words you hear belong to someone else? Videoconferencing platforms will arbitrarily select one – and only one – audio stream to push through to all participants. They do not differentiate among voices based on who is speaking the loudest, or first, or on any other criteria. While you can hear yourself speaking, it is possible the reporter and other participants are hearing just one voice when multiple participants are speaking simultaneously. 

Reporters can only capture the voice they hear. Do you want to take the chance that the voice preserved in the record is not yours?

One additional complication: the modern litigation environment frequently contains a mix of virtual and in-person appearances. Some participants are present in the same room with the reporter, while others are not. Some in-person participants may be wearing masks, while others speak mask-less from a distance. These factors make it difficult for the reporter to pick up muffled voices or to identify the speaker without the ability to see whose lips are moving.

The simple act of listening, pausing, and speaking one at a time will give the reporter the best opportunity to create an accurate record of a remote, or partially remote, proceeding.

Be Disciplined and Professional

It is more important than ever for all participants to be courteous and civil toward others who are speaking. Counsel play a crucial role in conducting and setting the tone for a professional, successful proceeding. A disciplined, professional approach to questioning witnesses will go a long way toward creating a record that is completely and readily comprehensible by attorneys and judges.

Prepare the Witness for Interruptions

Witnesses should be advised that it is important to demonstrate respect for all participants and for the proceeding itself. The witness should be advised to listen to the entirety of each question before responding and to pause a moment before delivering their response. The witness should also be advised to immediately stop speaking when an objection is made. 

Carefully Preserve Objections

Eliminating simultaneous conversation is critical when objections are made. If the deponent/witness has already begun their response when the objection is made, the objection may not be heard by the reporter. If the reporter didn’t hear what was said, chances are others in the proceeding didn’t hear it, either. Be sure to enunciate clearly and firmly vocalize your objection – particularly if you are wearing a mask. 

We’ve all heard the admonition, “Please wait until I finish the question, pause for a moment to allow opposing counsel to state their objection, and then begin your answer.” This familiar practice greatly assists the reporter in creating a complete and accurate record. For trials, it also allows the judge or jury to more easily follow and understand the proceedings. 

Take Cues from the Reporter

Simultaneous speech, where participants are speaking over each other and cutting one another off mid-sentence, will prompt the reporter to interrupt and ask for clarification. This is a sign that the reporter is taking responsibility for the accurate preservation of the record. Stenographic reporters know how important every word is to your case. They should be commended for and supported in performing their duty as guardians of the record. You, as counsel, can assist in creating the best record by reminding yourself and others involved to speak one at a time. 

Stenographic reporters, no matter how skilled, will struggle to preserve the record when multiple people speak at the same time. Speaking one at a time goes a long way toward ensuring that every word is captured and preserved in the record. Remembering to speak one at a time, even in the most stressful and intense moments, will make everyone’s job more pleasant, enhance efficiency during the proceedings, and ultimately produce the best record for your case.