There must be something about the weather warming up because we have noticed that many depositions have become a bit more “contentious” lately. On several occasions, in just the last month, our court reporters have been told to “go off the record” or to “terminate the deposition” due to disagreements between counsel about the scope or tone of the examination. While these disagreements can be somewhat entertaining, they do create several issues that our Louisville court reporters must address. The purpose of this post is not to tell lawyers when they should end a deposition; it is simply to explain the responsibilities of our court reporters and describe what steps we must take when, in the words of MTV’s Real World series, lawyers stop being polite and start getting real.
Again, we caveat this article by saying that all attorneys should be zealous advocates for their clients. Our only purpose is to explore a couple of hypothetical situations and explain the court reporter’s obligations.
Scenario One: Terminating The Deposition.
The following is a hypothetical attorney exchange during a deposition:
Attorney 1: When exactly did you stop beating you wife?
Attorney 2: Objection! Form, Foundation and I don’t like the question!
Witness (asking Attorney 2): What if I never stopped?
Attorney 1: I’m sorry, could you say that louder Mr. Wife Beater?
Attorney 2: Objection! You can’t call my client names.
Attorney 1: I’ll phrase my questions however I want.
Attorney 2: That is it, this deposition is over. We are leaving.
Attorney 1: No, it’s not, I’m not finished. Ms. Court Reporter, stay where you are.
Attorney 2: Ms. Court Reporter, we are leaving!
In this situation, a disagreement has arisen between the attorneys and one side has announced that the deposition is over. Frankly, an attorney would seem to be well within their rights to terminate a deposition under the facts described above. However, the court reporter is actually obligated to continue the deposition until all parties agree to end the deposition or until a judge orders the end of the deposition. As a result, the party terminating the deposition often leaves with their client while the court reporter is left to take down any statements that the remaining attorney would like to make on the record. To be clear, we do not and cannot play favorites. Even though we like all of our clients, we are ethically obligated to stay on the record until both parties agree. According to the National Court Reporters Association, a court reporter is duty-bound to remain on the record unless all parties agree to terminate the deposition. If we ever stay on the record after you leave, it is because we are ethically required to do so.
Scenario Two: I Take That Back
Attorney 1: Mr. Witness, when did you stop beating your wife?
Attorney 2: Come on, you are just asking that because your wife is so ugly. Ha, ha! By the way, I’m just joking. Keep that off the record.
Attorney 1: No, we were not off the record. I want the world to know that you think my wife is ugly.
Attorney 2: It was just a joke. She is fat but not ugly. Ha ha. Seriously, we are off the record.
Attorney 1: No, we are not off the record!
While not nearly as amusing, this situation actually arises with some frequency. Many attorneys will enter into a sidebar discussion without formally going off the record. If the attorneys subsequently disagree as to whether the conversation was actually off the record, then the court reporter has no choice but to keep it on the record. In other words, if a conversation begins as “on the record” then the court reporter must keep it on the record unless all parties agree to take it off the record. Again, this is consistent with case law and the ethics opinions announced but the National Court Reporters Association.
As court reporters, our desire is make all of the attorneys with whom we work as happy as possible. However, our obligation is to maintain the record in accordance with all parties’ wishes. Our word of advice is to simply agree to go off the record before you say anything that you would not want in writing. We are happy to go on and off as much as you wish. In the meantime, stay feisty. It makes our work far more entertaining.
Kentuckiana Court Reporters
730 West Main Street, Louisville, KY 40202 | 710 East Main Street, Lexington, KY 40502