The Overlapping-Speaker Deposition
You are the certified shorthand reporter at a civil deposition in a personal injury case. The witness is a 71-year-old plaintiff who speaks quickly and occasionally overlaps with opposing counsel. At 10:14 a.m., counsel asks a two-part question: "Did you see the wet floor sign before you fell, and did you tell anyone about the sign that day?" The witness answers, "I never saw any sign, and I didn't tell nobody because there wasn't nobody there." Opposing counsel objects: "Move to strike as nonresponsive and assume facts not in evidence." The examining attorney says, "Let me rephrase." Your audio backup shows a brief cross-talk segment where the witness says something under the objection that you cannot clearly resolve. You must produce a certified transcript. The deposition is expected to run three more hours.
1. How should you handle the unintelligible cross-talk segment in the certified transcript, and why is this the correct approach?
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The segment must not be guessed at or silently smoothed over. The correct practice is to mark the unclear portion with a recognized parenthetical such as "(Whereupon, a discussion was held off the record)" only if that accurately describes what occurred; if the words themselves are inaudible, use an appropriate notation like "(inaudible)" or "(unintelligible)" at the precise location. The reasoning is that a certified transcript must accurately reflect the record as it occurred, and the reporter's duty of accuracy forbids inventing or inferring testimony. The objection and the witness's overlapping words should each be placed where they belong in the flow. If the audio cannot resolve the segment, the reporter should preserve the uncertainty rather than fabricate content. The reporter should also retain the audio backup and, if requested, review it or have the segment read back. This protects the integrity of the record and the reporter's certification.
2. The witness's answer contains a double negative and a potentially objectionable statement. What is your role regarding grammar and objections, and what should appear in the transcript?
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The reporter's role is to record, not to correct. The witness's exact words-"I didn't tell nobody because there wasn't nobody there"-must be transcribed verbatim, including the double negative, because altering grammar would change the evidence and could mislead a reader about the witness's actual statement. The objection should be recorded as spoken, attributed to the objecting counsel, and the court's or examining attorney's response noted. The reporter does not rule on the objection, does not delete the answer, and does not clean up the grammar. If a word is unclear, use an inaudible notation rather than substituting a grammatically correct word. The reasoning is that the transcript is a verbatim record; editorial correction belongs to the parties, not the reporter. Accuracy and neutrality are the governing principles.
3. The examining attorney says, "Let me rephrase." Must the reporter strike or remove the prior question and answer from the transcript?
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No. A rephrased question does not retroactively erase the earlier question and answer. The record should show the original question, the witness's answer, the objection, and the rephrasing, in sequence. The reporter records what happened; only the court (or the parties by stipulation, where permitted) can strike testimony, and even a strike is typically noted rather than physically deleted from a certified transcript. Removing the exchange would create an incomplete and potentially misleading record. The reporter may note a motion to strike if one is made, but should not excise material on the attorney's informal "let me rephrase." The reasoning is that completeness and neutrality protect all parties and preserve the record for later review.