Tips/Suggestions for Conducting a Deposition
(Or How to Work With a Court Reporter)

I'm not an attorney and I don't play one on TV, but as a layperson who has sat through over 2,400 depositions and counting, I offer the following for your consideration, with the disclaimer that I am not qualified nor attempting to present strategies for questioning a witness. I'm suggesting ways to conduct a more efficient deposition and obtain the best possible transcript by working with the court reporter. How you eventually use the final transcript is up to you and your lawyerly skills.

Scheduling

When you set a deposition, think about whether you have any special needs or circumstances. Will the deposition run late, past 5:00 p.m.? Do you require any extra services such as a rough draft, realtime or an expedited transcript? Informing the agency in advance will ensure that the reporter sent to cover your deposition will be willing and able to accommodate you. Otherwise, prior commitments may preclude him or her from staying late or turning around a rush job. Not all court reporters are qualified to furnish realtime or carry the necessary equipment to every job unless specifically requested.

Lunch and Comfort Breaks

Although you may become immersed in the testimony, try to pause occasionally for comfort breaks. Besides giving the court reporter a chance to rest briefly, you may actually save time by reorganizing your notes and starting with a fresh perspective.

If you wish to work through lunch, please consult the reporter as well as the other participants. If the deposition will end in the early afternoon, he or she may be willing to push right through. Otherwise, a break as short as 30 minutes will be appreciated. In addition, if you decide to order lunch in to save time, don't forget to include the reporter. I have actually sat in depositions where it became apparent that lunch must have been discussed outside my presence when the secretary arrived with food for everyone in the room – except me.

Also keep in mind that it's counterproductive to work past a certain hour in the day. The quality of questions as well as answers deteriorates when everyone becomes too fatigued. At some point, it may make more sense to suspend and resume the deposition on another day.

Creating a Clean Record

Set a good example for the witness by enunciating clearly and projecting your voice. Don't put your hands in front of your mouth while speaking or cup your chin in your palm. Your eloquent words will be lost if they are muffled or inaudible. If the witness answers with nods, head shakes, gestures, grunts or nonwords such as "mm-hmm" or "uh-uh," clarify his or her response for the written record.

Try not to cut off the witness and don't let him or her interrupt you. Simultaneous speaking will not be on the record verbatim, if it's on the record at all. The reporter is only capable of comprehending and writing one speaker at a time.

If you wish to go off the record and opposing counsel wants to stay on the record (or vice versa), please be advised that the court reporter is obligated to keep writing. It is immaterial who hired him or her. The reporter is an impartial officer of the court and must stay on the record until all counsel present agree to go off.

If you are reading a document into the record, please make a conscious effort to slow down. People tend to speak more quickly when reading. Since the witness and opposing counsel are probably looking at the same exhibit while you read it aloud, they won't have a problem following whether you are saying "in" or "and," "16" or "60," "hypoglycemia" or "hyperglycemia." Sometimes documents are read so rapidly, it's tricky to discern whether a phrase belongs at the end of one sentence or the beginning of the next. You can assist the reporter's efforts to double-check anything that is unclear by providing a copy of documents read into the record.

Please take extra care with spoken numbers as well. Besides distinguishing the difference between "15" and "50," verbal shortcuts may be difficult for the reporter to decipher. If you say "ten-fifteen," it may be written 10:15, 10/15, 10.15, 1,015 or even 10,015. Sometimes context helps, but not always. Again, providing a hard copy of any documents you reference will help the reporter produce an accurate record.

Marking Exhibits

It's less confusing to mark exhibits as you go, rather than setting them aside to be tagged in a bunch at the end. Please pause briefly to allow the reporter to mark each document. It only takes a moment, but she can't do it with her toes, so it is impossible to continue making a record while marking exhibits. If you know beforehand that there will be many exhibits, let the reporter know at the beginning of the day or during a break, and he or she can prepare stickers in advance to streamline the process.

Interpreted Depositions

A good interpreter will help the deposition run more smoothly for everyone. When addressing questions to the witness, speak in the first person, exactly as you normally would if conducting the deposition in English. Ask the interpreter to do the same. Otherwise, the use of pronouns inevitably leads to unclear testimony.

1st Person

3rd Person

Who is the "he"? The male witness or the witness's brother? Both the question and the answer are ambiguous.

Please remind the witness to wait for the interpretation. If he does not, a skilled court reporter will note in the record which questions were interpreted and which were not. However, this puts an extra burden on the reporter and makes for a messy transcript. It also may later cast doubt on whether the witness truly understood the uninterpreted questions. Be consistent. If an interpreter is required, use him or her for the entire deposition, not just bits and pieces.

Videotaped Depositions

Remember, the videographer needs even more time than the court reporter to set up the necessary equipment. Please give him or her access to the conference room half an hour before the scheduled start time.

Usually only the witness will be shown on-screen, but be mindful of the camera position if you are passing papers back and forth across the table, so you do not block the lens with a document.

Be aware that your lapel microphone will magnify rattling and rustling of papers held near your chest, blowing out the eardrums of a reporter using an earpiece tapped into the videographer's sound system.

Telephone Depositions

The proper arrangement for a telephone deposition is to have the court reporter and the witness physically together in the same room. Attorneys can either be present with the reporter or attend via telephone, but it is essential that the witness and reporter be in one location so that the witness can be properly identified under Massachusetts Executive Order No. 455 (04-04).

If only one or two attorneys attend by phone, the reporter may be able to distinguish individual voices. Otherwise, if there are, for instance, five males on teleconference and one of them makes an objection, it will be impossible for the court reporter to identify the speaker. Although it may seem tedious, if necessary for the sake of a clear record, please announce your name each time you speak.

Videoconference Depositions

The same rules from videos and telephone depos apply. The reporter should be present with the witness, and microphones may amplify extraneous sounds.

Extra Courtesies

Please provide a case caption to the reporter upon her arrival. Sometimes she will already have the information, but if not, she needs the court heading and appearance information. Speaking of appearances, please offer a business card, especially if it's not your deposition or your office. If you are a regular client or the reporter knows you, of course this is unnecessary. If the case involves multiple parties, jot down the name of your client on the back of your card.

Anticipated no-shows. If you know a witness is likely to be a no-show, but you still need to make a record, the reporter appreciates being warned in advance. In particular, if you have a series of witnesses who you suspect will not appear, consider scheduling them close together to minimize the amount of wait time in between to see whether the last scheduled witness of the day appears.

Please keep the court reporter updated when someone is running late. It gets lonely in a conference room, wondering whether the depo is going forward or not.

Remember to silence or turn off your cell phone at the start of the day and following breaks.

Remind witnesses to bring photographic identification to the deposition. Hopefully your notices and subpoenas already contain boilerplate to that effect, but some people need an extra reminder. As of May 15, 2004, in the Commonwealth of Massachusetts, Executive Order No. 455 (04-04) made it mandatory for notaries to positively identify witnesses before administering an oath.

Refrain from asking the court reporter's opinion of the case, the testimony or the witness. A reluctance to comment is no reflection on you or your abilities. It is inappropriate and actually unethical for reporters to express opinions on the case.

Links

For more ideas on improving your deposition technique and a better understanding of what court reporters do, check out the following articles:

Faster & Faster & Faster by Jason Meadors – A veteran reporter writes an open letter to attorneys (and judges) that is both whimsical and serious. You get to decide which parts are which.

Making a Better Record: Tips from a Court Reporter to His Lawyer Child by William Macauley

Your Turn

What are your court reporter pet peeves? Is there something reporters do or don't do that would make your job easier? Let me know how I can improve my services; I'm interested in your feedback.

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