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A Litigator's Perspective on Deposition Transcript Management
Depositions in civil litigation serve multiple purposes. Simply gathering information would certainly be one of them. Creating a cross-examination script for trial, or laying the foundation for traps to spring would be others. Also: extracting the admissions for a winning summary judgment motion, shredding the opposing expert to enhance the settlement value of the case for one's client and perhaps even forcing one's client to acknowledge the warts in one's own case. And if one thousand litigators were polled, one would probably hear as many different opinions on the various purposes of depositions and the relative importance of those purposes. But one thing that all litigators should agree on is that real-time transcription and deposition transcript management applications can be significant tools for accomplishing whatever goals one has in a given deposition. One such product (and perhaps the most widely used product) is LiveNote, which can be a useful tool during the deposition, immediately after the deposition, in motions practice and at trial.
During the Deposition. Notwithstanding the oceans of ink spilled in bar journals decrying the state of the profession and calling for a return to civility, any litigator who frequently takes depositions will, from time to time, encounter obstructionist opposing counsel who flout the rules and deliberately defend with repeated speaking objections and subtle (or blatant) witness coaching. A crafty (or well-trained) witness can exacerbate the situation by picking up on the objections and tailoring his or her answers to match. Junior attorneys are especially ripe targets for this kind of unprofessional behavior, which frequently includes statements such as:
'I object ' that question blatantly mischaracterizes the prior testimony. What the witness actually said was '.'
'You asked me that already, a bunch of times. You asked it two hours ago and you asked it 10 minutes ago. I'm done repeating myself.'
Unprofessional or not, the fact of the matter is that such behavior can frequently be effective at knocking off the rhythm of the questioning attorney. Asking the court reporter to stop and find questions and answers from 10 minutes ago, let alone two hours ago, disrupts testimony, kills momentum and spontaneity, and chews up what may be precious time. But if the questioning attorney has a real-time transcript available at his or her fingertips, which is perhaps the most fundamental thing that LiveNote offers, the questioning attorney can quickly obtain the upper hand in such situations by term-searching the transcript for the critical pieces of testimony. Information is power, and one might imagine responses such as:
'First, counsel, your speaking objections are improper. Second, you are wrong. What the witness said was '[Quote].' With that testimony in mind, Mr./Ms. Witness, can you please answer the current question, which is'.'
'Mr./Ms. Witness, please understand that you are here today to answer my questions. Unless your lawyer instructs you not to answer, you are required to provide truthful answers. That said, for your information what I asked you two hours ago was ['X'] and what I asked you 10 minutes ago was ['Y']. I'm now asking you a slightly different question, which is ['Z']. Can you please answer?'
The author's experience has been that it only takes two or three such exchanges for the defending attorney and/or the deponent to abandon that kind of gamesmanship. And controversial questions and answers that the deposing attorney anticipates referring back to later can be marked for quick reference with a simple tap of the space bar.
Relatedly, a deposing attorney with LiveNote capability can term-search not just the current transcript, but all transcripts previously taken in the case (provided they have been loaded onto the deposing attorney's computer). This can be extremely useful when a deponent coughs up an answer that opens the door to an unexpected area of inquiry that had been addressed by previous deponents. A few quick term searches can give the deposing attorney the precise questions and answers from the previous depositions so that the questions in the current deposition can match up verbatim. In addition, and in subsequent motions practice or at trial there will not be any wiggle room in the questions for the other side to use to try to explain away the damaging discrepancies in the answers.
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