As a court reporter with over 30 years of experience, I’ve had the opportunity to listen to hundreds of lawyers/attorneys conduct examinations and depositions over the years. In this fast-paced world, where everyone is trying to cram in as much as possible, the taking of evidence is no exception. Oftentimes not only counsel but the witnesses themselves are in a rush to get as much done as possible, as quickly as possible, and as efficiently as possible. The down side to rushing, though, is often a record that contains many false starts, questions or answers that are interrupted or incomplete, and sometimes questions or answers that are not posited in the way they were actually meant.

One thing I’ve noticed in reporting U.S. depositions is that there is a boiler plate set of instructions that is very often given to witnesses prior to the testimony really beginning. The dialogue goes something along these lines:

Q. Sir, as I mentioned let me just go over a few of the mechanics of a deposition so that you understand. The product of this deposition will be your testimony. It is being taken stenographically. The court reporter, Kim, is taking down everything that is being said and you should assume that everything will be taken down and be on the record. The videographer is also making a videotape of the proceedings. Because there is a printed record, we need to try to speak distinctly and clearly. I’m going to try to keep my voice up. If at any time you can’t hear me, or anyone else who may speak and pose questions to you, please just ask the speaker to speak up.

A. I will do so.

Q. Likewise, I will try to make my questions clear to you but if they’re not clear, simply say so and I’ll try to rephrase the question to make it clearer.

A. Certainly.

Q. Let’s try not to speak over one another. Let me get my questions out before you start answering and I’ll try not to interrupt your answers.

You need to answer audibly rather than in nods or gestures. The videotape can record nods and gestures but the printed transcript cannot, so please answer audibly to all questions.

I anticipate that my questions at least will take probably an hour and a half or so. Nonetheless, if you need to take a break at any time for any reason, just let me know and we’ll go ahead and take a break. The one exception to that is we won’t take breaks while a question is pending.

In other words, if I have asked you a question and you haven’t started or completed your answer, then I’ll ask you to do so before we take a break, but if you need a break for any reason, please just say so, we’ll go ahead and take a break.

A. Absolutely.

Q. You will have the opportunity to review the printed transcript after it’s prepared to and to note any errors you believe have been made either in the transcription of what you said or if you think you misspoke and want to change the record, you can do that.

One of the parties may seek to reconvene the deposition at that point to ask why you made changes, but that is your right, sir. And the court reporter will ask at the end of the deposition but let me just ask now, would you like to review the transcript of the deposition?

A. I would like to look over the transcript if that is the question, just to be sure that I have understood the questions correctly and answered correctly.

Q. Very good. We’ll make sure that that happens. Sir, do you have any medical conditions that would prevent you from testifying fully ‑‑

A. I am in perfect health.

Q. Again, let me just get out my question before you start answering. Just so the record is clear, you do not have any medical conditions other than your hearing issue that would affect your testimony here today?

A. No, I don’t.

My experience is by repeating these admonitions or instructions, it reminds counsel about the importance of creating a readable record later, and it also helps the witness understand their role. Often counsel will say to the witness, ‘This will feel like a conversation, but unlike a conversation, we have rules we need to observe so that you clearly hear the question and are able to provide the best answer possible.”

Time is the only real commodity all of us cannot replace – and we all want to use it efficiently – but let’s not forget that the written record may be the only thing you can rely on later, and you’ll want to create the best possible product!