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Making the record
February 10 - 18 was national court reporter week and although many of us deal with court reporters daily, the week typically passes us by with little fanfare. Having been married to an official court reporter for over 30 years however, I know how hard they work and their dedication to ensuring that we, as judges and lawyers, have the best record of the proceedings as is possible.
Unfortunately, we often take for granted what goes into the making of the record. While the reporter has a duty to take down all that is said, the true burden of making a record rests with us, the judges and attorneys. So what can we do to make a better record? Well, having spent a career in the courtroom, and having eavesdropped on more than one court reporter’s conversations, I think I can pass along a few suggestions.
You may ask, “Why should we even care?” After all, isn’t what happens in court what really matters? While the battle at hand may be your focus, a complete and accurate record may mean the difference between success and failure in future proceedings, or on appeal. So while you may win the battle, your lack of diligence in making your record, could result in your losing the war. To borrow a phrase from computer programmers: “garbage in, garbage out!” In other words, your record is only as good as you make it! It would not be the first time that a well thought out ruling or argument was overturned on appeal because the court or counsel failed to perfect their record.
So what makes a good record? Simply put, clarity! There should be only one voice speaking at a time, in an easily understood and audible tone. If it is worth saying, say it so that everyone in the courtroom can hear and understand it. While it sounds simple enough, in practice, it is not always so easy.
So what are the basics? Start with always identifying yourself and your client, “for the record.” Don’t assume the reporter knows you, or knows how to spell your name. Be aware of where the reporter is seated. They will usually be situated so that conversations and testimony directed to the judge or jury can be easily heard. Avoid turning your back to the reporter or the trier of fact. Resist the urge to keep talking as you scan the courtroom for your client, or search for that document in your brief case. The judge, jury and the reporter will appreciate it. Remind your witness to speak up, and avoid situations that result in the witness turning their back to the reporter.
Remember the rule, only one voice at a time. While it may be necessary in limited situations to interrupt a witness to prevent inadmissible testimony from being heard, it is generally never a good practice to speak when someone else is. Whether interrupting a witness or opposing counsel, it is a bad practice and poor form. Remember, when making the record you want the reporter to hear and understand what is being said. When two or more voices are speaking at once usually none of them are heard, or understood. Moreover, do not assume that the reporter understands what is being said. While reporters are taught to interrupt witnesses or counsel when things get out of hand, they may not always be able to do so. The responsibility rests with the court and counsel to ensure that there is only one person speaking at a time. Be patient, you will get your chance to speak. Not only will the reporter appreciate it, but you will also win points with the trier of fact.
Be aware of what you are saying. Many names for example sound alike: Petersen/Peterson, Mariann/Maryann/Marianne, and Hoffman/Aufman. So spell the words slowly. But be aware that many letters sound alike: M and N, B and D and V, F and S, and P and T may all cause confusion. So sometimes, it may be necessary to use identifying words such as: “the letter M as in Mary” or, “the letter N as in Nancy.” Also, take greater care when you are talking about numbers. While it may sound perfectly natural to say “twelve forty-five,” what were you actually talking about? Is it an amount, dollars and cents, or is it time? There is a big difference between 1,245 and $12.45; or, 12:45 AM and 12:45 PM. So use the correct identifying language to make your numbers clear. The same can be said for dates. When you say “January twenty fourteen,” did you mean January 2014 or January 20, ‘14?
Pay attention to the actions of your witness or the exhibits that you are referencing. If a witness demonstrates something with their hand while saying “and he did this,” how will anyone reading the transcript know what “this” is unless you describe the action “for the record?” Ask the court: “May the record reflect that the witness was pointing her finger in front of her in the shape of a pistol?” Or, when the witness says, “she slapped me here,” you must say something like: “your Honor, may the record reflect that the witness is pointing to an area on the right side of his cheek?” When you show the witness an exhibit, remember to identify it. Don’t say: “Mr. Jones do you recognize this?” Instead say: “Mr. Jones, I’m showing you Plaintiff’s Exhibit Number 1, do you recognize it?” Or, when a witness who is identifying an item in a photo says: “that’s it right there,” don’t forget to describe what happened for the record. For example: “Mr. Jones, are you pointing to the red car that appears in the lower right-hand corner of Plaintiff’s Exhibit 1?” Descriptions such as these will never leave a reader of the transcript wondering what actually occurred in court.
Remember, you and your witnesses need to speak words instead of using sounds or gestures. While some reporters may note that a witness nodded in response to an answer, not all reporters will. More importantly, the reporter cannot interpret gestures. It is the responsibility of the attorney or the court to remind the witness to answer yes or no. Similarly, while reporters will take down all sounds that they can hear, sounds that are not words or that have no meaning will remain meaningless, unless you clarify them. So while you may think you understand the witness when they say “uh-uh,” anybody reading the transcript would only be guessing. Ask the witness: “did you mean yes or no?”
The use of interpreters also poses unique problems. The interpreter is not the witness but merely a translator of everything the questioner says, and the answers that are given. Never say to an interpreter: “ask her to state her name.” Instead, have a conversation directly with the witness, just as you would any other. Speak slower to give the interpreter time to understand you, and then wait for the interpretation and the translation to be completed before you ask your next question. Also, if your interpreter starts the translation with the phrase “she said...,” then either you or the court must stop the interpreter immediately and remind them to repeat what the witness said verbatim.
Sometimes it is necessary to read or quote something from a text or a prepared script. Keep in mind that when we do so, we have a tendency to speak faster than we would if we were choosing our words as we speak. Slow down and be mindful of your pace when you are reading, quoting something, or merely reciting a prepared monologue. Also be aware of your normal speech patterns and habits. If you talk fast or if you drop off at the end of your sentences, your every word might not always be heard. If you speak in low or soft tones, you may often be misunderstood. The proceedings are not a secret. They are for public consumption. You want to be understood. So speak up, speak clearly, and make sure your reporter is able to hear and understand you.
While these tips should go a long way in helping you build a better record, even the most practiced of us misspeak from time to time. In fact, in the heat of battle, we may misspeak and not even realize it. We may ask questions and not obtain or even wait for an answer. We may intend to ask a question and forget to.
Remember the reporter can only take down what he or she hears. That includes all of the false starts, misstatements, urns, and uhs. So the next time you read a transcript, avoid the urge to grade your reporter since it is most likely they took down everything that you said, and only what was said.
Taking a moment to become and remain aware of your reporter will go a long way toward helping you build a better record. Keeping these tips in mind the next time you’re “on the record” should result in a clear and more complete report of the proceeding. So in honor of the hard work that our official court reporters do, join me in thanking them, and let us all make a better record!
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