Ideas from the Front
Like a Broken Record
When Transcripts Are Lost or Mangled, Some Lawyers Fight and Some Are Polite
Posted Oct 24, 2006 4:34 AM CST
By Leslie A. Gordon
When Barry Steelman took on a medical-malpractice client, he had no idea the case would turn on two letters in a deposition transcript.
Steelman’s doctor witness had explained that he was an expert in hypercoagulability, but not hypocoagulability. The court reporter transposed the similar-sounding terms, and opposing counsel moved to exclude the testimony.
“Left as typed, my expert killed us,” recalls Steelman of Towson, Md. He called the court reporting service, and his version proved the correct one. “They filed an affidavit, and it made all the difference in settling,” he says.
Outcome-changing court reporting mishaps are rare but not unheard of. Recently, a corporate defendant found liable for $50 million sued a court reporter for having poor notes and faulty equipment and for failing to record portions of the trial, according to the federal court complaint filed in West Virginia.
Although trials are rarely bungled due to court reporter error, smaller mistakes—questions combined with answers, misidentified speakers—can influence outcomes.
One California employment defense lawyer recalled when a single word—not—was dropped from his question in a transcript of the plaintiff’s deposition, making the testimony the opposite of what was intended. “It was obvious from the context that the word had been inadvertently dropped,” says the lawyer, who tried to use the deposition to impeach the plaintiff’s testimony at trial anyway. Counsel for the plaintiff objected, though, and the judge sustained the objection.
The lesson? Treat transcribed testimony with care: Take notes while a witness is speaking, and review the transcript as soon as you get it, lawyers say. Be especially mindful of local rules, which govern the timing for making transcript changes and counsel’s ability to demand that court reporters verify the transcription from audiotapes.
If the situation calls for contacting the reporting service, by all means do so. But don’t forget that a little understanding goes a long way. “Court reporter transcripts are 99 percent accurate,” says Doreen Perkins, the Fresno, Calif.-based president of the California Court Reporters Association. That’s an amazing rate, considering reporters typically “transcribe 100-240 words a minute amidst background noise, attorneys talking over each other, mumbling and nodding.”
Courting the Company
Court reporting companies are generally receptive to requests for record verification, says Todd Combs of San Francisco based Combs Reporting Inc. (Errors are noted on an errata sheet attached to the back of the transcript; the record itself is not changed, Combs explains.)
That was certainly the case for Steelman: “I called the reporting service—not the reporter—explained the situation and asked a third person to listen to the audiotape.” He says he took this approach to avoid even the appearance of undue influence over the record. And having a third party listen to the tape avoided any concern about defensiveness from the reporter in the future, he says.
In worst cases, however, the transcript is lost or tossed. Katrina Dewey, CEO and publisher of Lawdragon, a legal news and lawyer-ranking publication in Los Angeles, recalls a court reporting fiasco involving an ambitious roundtable discussion on diversity that she planned while serving as editor of a California legal newspaper.
The publisher flew in high-powered lawyers and hosted a six-hour discussion. “We hired a court reporter so the text would be as accurate as we could possibly make it,” Dewey says. “But the court reporter failed to produce the transcript because she was depressed.”
The court reporter was so depressed, in fact, that she attempted suicide she was not successful. But first she had thrown the tape off a mountain; it was not recovered. Perhaps the best lesson to be learned from these anecdotes, rare as they may be: If you encounter a conscientious court reporter—one who halts proceedings to get the record correct, understands specialty lingo and provides a timely transcript—request that person in future cases.