Cross-Examination: Overlapping Objections, a Self-Correction, and a Gesture
Plaintiff's counsel is cross-examining the defendant in a personal-injury trial at a fast pace. Two attorneys begin objections at the same moment: "Objection - foundation, and I want a standing objection to all of this," while the witness is already answering. The judge says "Overruled" as the answer continues. Later the witness says, "I got there - no, strike that. I mean Tuesday, the 14th." At one point she gestures at a large diagram on an easel and says, "Right there, where it bends," without naming the exhibit, which was marked earlier as Exhibit 12. She then weeps silently for several seconds, and the judge calls a brief recess. At the break, the judge's clerk asks you to "leave out the crying - it's prejudicial and irrelevant."
1. How do you record the overlapping objection and the witness's "strike that"?
Read the worked answer
The self-correction: only the court can strike. What the witness did is correct herself, and that is transcribed as spoken:
Q. ... A. I got there - no, strike that. I mean Tuesday, the 14th.
Use the dash and the period to preserve the break in her delivery; do not excise the first version, and do not promote the corrected date to the exclusion of the original. Both are on the record, and cross-examination about the correction is precisely what the record must support.
The simultaneity: record the speakers in the order you perceived them, in Q&A format with a separate paragraph for each speaker. Do not rearrange the sequence to produce a tidier page, and do not attribute an answer to a question it may have preceded.
- If speech is genuinely simultaneous and a portion is unintelligible, say so neutrally: "(Simultaneous objection and answer.)" or "(Objection; answer overlapping.)"
- Preserve your notes and the audio; note the time so the passage can be revisited.
- Never reconstruct plausible words to fill an overlap, and never supply a ruling the judge did not make. The standing objection is transcribed as spoken, with the "Overruled" the judge actually gave and no more.
2. How do you handle "Right there, where it bends" when the witness gestures at the diagram without naming Exhibit 12?
Read the worked answer
Transcribe the words, describe the conduct neutrally, and do not make the identification for her.
- The words go in verbatim: "Right there, where it bends."
- A gesture carrying meaning may be captured in a factual parenthetical of the reporter's own observation - for example, "(Indicating.)" - placed at the point it occurred. What it must not become is "(Indicating Exhibit 12)" unless the witness, counsel, or the court actually identified the exhibit on the record. The reporter's guess about which object was indicated is not testimony, and a reviewing court cannot tell it apart from a stipulation.
- If the reference is material and the record is ambiguous, the proper remedy is on the record: raise it with the judge or counsel at the next break so the witness can be asked to identify the exhibit, or so the court states for the record what was indicated. That colloquy is then transcribed.
- If the witness or counsel later supplies the identification, transcribe that statement where it occurs; do not go back and amend the earlier page.
Do not describe the diagram's contents, characterize her gesture as pointing to the defect, or estimate distances - all of that is argument or testimony you are not competent to supply.
3. The clerk asks you to omit the crying as prejudicial and irrelevant. What do you say, and what is the difference between what she is asking for and a lawful alternative?
Read the worked answer
Decline. Relevance and prejudice are for the court and counsel, not the reporter, and a reporter's transcript is not edited by anyone's view of what a jury should have seen.
- Nonverbal conduct that is part of the proceeding - weeping, a demonstration, an interruption - may be noted in a factual parenthetical, e.g., "(Witness crying.)"), at the point it occurred, because it is part of the event the appellate court may need to assess.
- Do not characterize the emotion beyond what is observable ("hysterical," "composed," "in a distressed tone") unless it is genuinely descriptive and non-evaluative.
- Omission is not the mechanism. If a party believes material should not be publicly disclosed, the lawful route is a motion, made on the record, to seal that portion - sealing preserves the text while restricting access. A reporter who deletes material destroys the record and cannot restore it.
- Point out, politely, that the request should come from the court on the record, and that you will follow a court order about sealing or about how the passage is described.
- Do not mention the clerk's request to counsel or the jury; if it was made in your presence as a request to alter the record, you may report it to the judge.