Fixing Deposition Transcripts When Your Questions Are Messed Up

Every jurisdiction has a procedure for correcting transcription errors in a deponent's answers. But what if there are errors in your questions? What if the deponent's answers are recorded correctly ("yes," "no," etc.), but it's your questions that are mangled?

Although I sometimes notice errors in the way my deposition questions are transcribed, usually the errors aren't significant enough to matter. One time was different. It was a deposition I took of the defendant's expert, a cardiac pathologist. It was a highly technical deposition with highly technical words, and I'd spent a good deal of time preparing for it. I also had to travel to New York. I wasn't happy when I saw that the medical terms I'd so carefully used to form my leading questions had been taken down incorrectly--so incorrectly they couldn't be used for impeachment. I had the "yes's" and "no's" I wanted from the witness, but these were worthless as they came after questions I really didn't ask.*

How did I solve the problem? Maybe someone else knows a better procedure, but here's what I did. I simply wrote a letter to my opposing counsel listing all the errors in the transcript. I then asked my opposing counsel to consent to having the reporter fix the errors. It seemed to me that my opposing counsel would agree--first, she'd been at the deposition herself and knew the transcript was messed up just like I did; second, if she didn't agree, she'd have to fend off my attempts to have the judge let me to start over again from scratch. And if I was successful, she'd have to spend her client's money trudging back to New York for another deposition.

What happened next? It was an event that cures lots of problems like the one I had: the case settled. Meanwhile, I'd learned an important lesson about taking depositions. After deposing a doctor, it make sense to spend some time with the court reporter making sure he or she understood the medical jargon. If there are terms that sound very much like the ones you used but have a different meaning, make sure the court reporter uses the correct term. Even give the court reporter a glossary if you have to. It sure beats having spent the time and money taking a deposition that turns out to be useless to you in the end.

*Example for the curious: Early in the deposition, I told the witness that rather than saying "fenfluramine and dexfenfluramine" every time I asked a question about these compounds, I'd simply say "the fenfluramines." The witness agreed this made sense. I then went on to ask many critical questions about "the fenfluramines." In the transcript, however, the reporter mistranscribed almost all these references as "fenfluramine," even dropping the "the." It meant that the witness's yes and no answers were applicable only to fenfluramine but not to dexfenfluramine, which was the main chemical compound at issue in the case. This was only one of many similar errors the court reporter made.

Comments

[Lisa]

I am a CSR, certified shorthand reporter in California. You are absolutely right about the fact that at the end of the deposition, in the stipulation it is usually explained to the deponent how he and/or she can make changes to their answers, but there is nothing ever mentioned about when a question is taken down incorrectly. I think you had the perfect solution to handle the problem, by contacting opposing counsel, and also notifying the reporter of the error so she can correct the transcript and resend it out to all of the parties. Thankfully the case settled.

During doctor depos I personally flag all spellings and MEDICAL TERMS that I might have misheard, and then ask counsel or the doctor at the end of the proceeding exactly what the term was. I usually end up having to flag about two or three medical words, and various pronoun spellings. Even after seven years of being a reporter and having taken MANY doctor depos, I am still far from being an expert at every single medical word in my Webster's Medical Dictionary and PDR, although I am making cue cards and am well on my way:)

Exhibits are WONDERFUL in doctor depositions and help tremendously. When a medical chart is attached as an exhibit, after careful reading, it is easy to understand the terminology fully and make sure the tiniest of errors are caught. And when the attorney refers to a particular page, in transcribing the reporter can also go to that same page and quote verbatim in the transcript from the document.

Lisa, deposition reporter

[Ron Miller]

What Lisa does it what every good (and most) court reporters do.

It would have been interesting to see how it would play out if (1) your case had not settled, (2) counsel objected to the changes in the record, and (3) the deposition was not recorded.

I have to admit I never considered the question of whether the court reporter got my questions down.

Ron Miller
www.marylandinjurylawyerblog.com

[Lisa]

I have a correction in my last comment. The word "pronoun" should be changed to "proper noun."

Lisa, deposition reporter

[ygbsm]

I've done a large number of depositions in patent cases often involving arcane technical terms. One practice is to have a list of the hard-to-spell terms for the reporter and give the reporter this list at the deposition terms. One hint to know you reporter may be having trouble -- when you ask a witness about the companys reasearch and development work using the standard abbreviation and the reporter asks what "R-N-D" means -- this means your goibg to have a long day....

One cautionary note re the example: *Example for the curious: Early in the deposition, I told the witness that rather than saying "fenfluramine and dexfenfluramine" every time I asked a question about these compounds, I'd simply say "the fenfluramines." The witness agreed this made sense. I then went on to ask many critical questions about "the fenfluramines."
I've spent enough time with cross prep where you may not want to have to preface the "smoking gun" cross question with your definitional questions from pages before -- it's just a matter of style, but the drama may suffer and trial lawyers like their drama, you know....

[Mary Ann Payonk, CRR, RDR]

I'm a court reporter in Washington, DC. Ditto and tritto (?!) Lisa's comments. And perhaps you'll agree with me when I say that all court reporters are not created equal. When handling high-end work, attorneys should always let the court reporting firm know the deposition will be highly technical ... that you want a seasoned, experienced reporter to handle it ... and you'll take no excuses for a transcript that's less than verbatim.

I'm kind of wondering out loud, but do attorneys ever get a mangled transcript, or something I call McTranscript Lite, and just flatly refuse to pay for it? After all, if you can't use it, what good is it to you? I certainly hate paying for something that I can't use.

It seems harsh, I know, but I've been reporting for 30 years. I've seen some disturbing trends in reporting in the last ten years, both from the reporter's side and from the client's side. I simply don't feel that top-notch litigators should settle for anything less than the cream of the crop reporters to cover their work.

Most court reporters are independent contractors, especially in large metropolitan markets, and if a reporting firm doesn't have a reporter on staff the caliber of which you require for your work, the freelance community does. Court reporting firms are never limited to those reporters they have on staff. Probably the main thing that may limit a reporting firm's access to the competent reporters in a market would be the rates they pay. Many firms are very willing to trade cheap rates for high volume, but you can't always get competent, skilled reporters to work for those rates so in the end, well, we pay a high price for those cheap rates.

I'm also a realtime reporter, and speaking of mangled transcripts, realtime is one area where if you can't read it, you simply can't use it. And again, why pay for something you can't use?

I happened upon this site while researching electronic discovery questions. Thanks for the opportunity to share my comments.

Mary Ann Payonk, CRR, RDR
Independent Freelance Reporter
Washington, DC