Guest post – To Correct or Not to Correct a deposition transcript

guest bookI think that today’s post, written by Julie Brook, Esq. is likely to be of interest to many readers – whether lawyers, court reporters, or translators. For me, there are parallels to be drawn with whether translators should correct legal texts or not, and if so how such corrections should be done, and what types of texts may or may not be corrected. I look forward to hearing your comments!

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Unless you agree otherwise, the deponent can change the form or substance of any answer in the deposition transcript. But just because you can doesn’t mean you should.

There are definitely good reasons to correct a deposition transcript so that the recorded answers are accurate and reflect what the deponent truly knows and believes. One major reason is that when a witness changes testimony at trial, opposing counsel can point out that the witness had the chance to correct the deposition transcript before trial and didn’t do it.

Other arguments for correcting the transcript include:

  • Reducing the possibility that adverse counsel will find deposition testimony that’s inconsistent with the deponent’s trial testimony;
  • Allowing the deponent to add facts to the answer so that it’s more fully responsive to the question;
  • Removing inaccurate answers that adversely affect the determination of pretrial motions (e.g., for summary judgment); and
  • Eliminating the appearance of correcting testimony at the last minute.

Witness IconWhenever the deposition transcript will be used as substitute testimony (i.e., when the witness’s deposition testimony will be read into evidence in place of the witness’ oral testimony), it’s extremely important to make sure not only that the deposition is transcribed correctly, but also that substantive errors are corrected.

Be sure to use caution when the deponent is a friendly witness but neither the client nor a client-related witness — communications between counsel and such a deponent aren’t subject to the attorney-client privilege. This means you’ll have to weigh the benefits of suggesting that the deponent correct the deposition against the possibility that those communications will be disclosed during trial.

It’s not always a good idea to correct the transcript. Sometimes it’s better to leave it as is and make any changes or corrections during trial. This preference to not correct is based on the following beliefs:

  • If some corrections are made, it will be more difficult for the deponent at trial to disavow other statements in the transcript that were inadvertently not corrected.
  • The burden of ensuring the correctness of all answers in the deposition is too great.
  • Making changes may highlight troublesome areas that opposing counsel might otherwise miss.
  • Opposing counsel can attack the witness’s credibility by pointing out any corrections at trial.
  • Opposing counsel may comment during closing argument that the witness’s oral testimony can’t be trusted because changes were made to the deposition testimony.

You can always ask the deposition officer to correct any typos or transcription errors and then notify other counsel of your request by letter. This will not only ensure the accuracy of the transcript, but will also ensure that the transcript can be used smoothly at trial.

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Credit: This material is reproduced from Julie Brook’s blog entry, To Correct or Not To Correct A Depo Transcript, Continuing Education of the Bar (CEB) Blog (October 9, 2013) copyright 2013 by the Regents of the University of California.  Reproduced with permission of Continuing Education of the Bar – California.  (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit the website, CEB.com).

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