The Thirty-Eight-Second Audio Gap Before an Appeal
During a three-day personal-injury trial, your digital audio recorder fails for 38 seconds while the plaintiff testifies about lost wages. Your stenotype notes capture 'about eighteen thousand' and 'two jobs,' but not the full sentence, and the plaintiff's exact words matter because the defense claims the lost-wage figure was never stated. The trial judge is unavailable; the attorneys want the transcript by Friday because the notice of appeal must be filed within 30 days. Opposing counsel suggests you fill in a reasonable estimate and says no one will challenge it. Your backup audio has a gap at the same point. The court's records retention schedule requires you to preserve the original notes and audio; you also have a draft transcript with a bracketed blank.
1. How should you handle the 38-second gap in the transcript?
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Do not fill in a reasonable estimate. Your certificate represents that the transcript is a true and correct record. If you did not hear the words and your notes do not capture them, mark the gap as '[inaudible]' or 'unintelligible' with the time and a reporter's note explaining the equipment failure. If your stenotype notes capture part of the answer, transcribe only what you can verify and mark the rest. You may not use the plaintiff's later testimony, the pleadings, or another witness's memory to reconstruct the missing words unless the parties make a stipulation on the record and the judge approves it. Even then, the stipulation should appear as a stipulation, not as verbatim testimony. Notify the judge and both attorneys promptly, in writing, so they can decide whether to seek a correction or a stipulation. If the judge is unavailable, tell the attorneys you will preserve the record and produce the transcript with the gap noted. A false estimate could affect the appeal and expose you to discipline.
2. Opposing counsel suggests you 'fill in a reasonable estimate.' What do you say, and what do you put in the certificate?
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Say clearly that you cannot estimate testimony. Explain that a transcript is evidence, not a paraphrase, and that inserting words you did not hear would violate your duty of accuracy and could mislead the court. Offer the lawful alternatives: mark the gap, preserve the audio and notes, and ask the parties to stipulate to the missing content on the record or ask the judge for a correction. In the certificate, certify the transcript as accurate to the best of your ability and add a reporter's note identifying the 38-second equipment failure and the approximate location. Do not certify that the transcript is complete without qualification if it is not. If the court later resolves the gap by stipulation or order, prepare a supplemental transcript. Also document the conversation with counsel in your files, because the request to estimate is itself significant. The goal is to protect the record and your professional reputation.
3. What retention and preservation steps apply?
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Preserve the original stenotype notes, the audio file with the gap, the draft transcript, and any correspondence about the gap until the retention period in the court's records schedule expires and the appeal is final. Do not overwrite or delete the audio, even though it is incomplete. Label the files with the case number, date, and the fact of the equipment failure. If the court's schedule permits destruction after a set period, do not destroy while an appeal or post-judgment motion is pending. Keep a log of who was notified and when. If a court order requires production of the original media, provide a copy and retain the original unless ordered otherwise. The gap may become an issue on appeal, so the record of the failure is as important as the transcript itself.