The Novelist’s Dialect and the Cleanup Request
During a copyright infringement deposition in federal court, the plaintiff-a novelist-reads a 212-word passage from her unpublished manuscript into the record. She reads at about 140 words per minute, includes the dialect line “I ain’t never been so all-fired sure,” pronounces a character’s name as “Xochitl,” and says aloud “quote, unquote” before a line of dialogue. Opposing counsel objects three times on relevance grounds and, after the passage, asks you to “clean up the grammar and punctuation so the jury can read it later.” The witness then spells Xochitl as “X-o-c-h-i-t-l” and says, “That’s a word I made up; I think it’s pronounced So-cheel.” At one point you cannot distinguish whether she said “perspicacious” or “perspicuous.” The deposition is being videotaped, and counsel wants to finish by 4:30 p.m. because the witness has a flight.
1. How should the passage appear in the transcript, including the spoken words “quote, unquote,” the dialect, and the character name? What do you do with counsel’s request to clean it up?
Read the worked answer
Transcribe what was said, not what should have been said. The passage is testimony read into the record; it is not an exhibit to be edited. Preserve “I ain’t never been so all-fired sure” exactly, including the dialect and the contraction. Do not substitute “haven’t ever” or add [sic] merely because the grammar is nonstandard; [sic] would editorialize and could suggest the witness erred when she is reading a character’s voice. For the spoken “quote, unquote,” use quotation marks around the quoted line and do not transcribe the words “quote” and “unquote” as if they were part of the dialogue unless the witness is describing punctuation. Example: He said, “I’ll be back before sundown.” If she literally says “quote” as a spoken instruction, the cleanest convention is to punctuate the quotation and omit the spoken labels, but be consistent with your style manual; some reporters record “quote” and “unquote” in the text. For the name, use “Xochitl” as spelled on the record after she spells it, and note the pronunciation only if it matters; do not render it “So-cheel” in place of the name. Counsel’s cleanup request: decline. The transcript is a verbatim record; you may later produce a separate reading copy only if the court orders it and it is clearly marked as nonofficial. Correct only your own transcription errors, not the witness’s grammar.
2. You cannot tell whether the witness said “perspicacious” or “perspicuous.” What steps do you take at the deposition, and how do you show the uncertainty in the transcript?
Read the worked answer
Interrupt at a natural break and ask on the record: “Would you repeat that word, please?” If it is still unclear, ask the witness to spell it or use it in a sentence. Record the colloquy, including the question and answer, so the appellate court can see how the uncertainty was resolved. If the word remains genuinely unintelligible, use a standard parenthetical such as “(inaudible)” or “(indiscernible)” rather than guessing between two words with different meanings. Do not silently choose “perspicacious” because it sounds more likely; that would be fabrication. If the videotape has a timestamp, note it in your notes so the word can be checked later. If the witness supplies a spelling, record the word as spelled and, if useful, note “(spelling confirmed on the record)”-but do not add that parenthetical routinely. The key is to preserve the attempt to clarify and to avoid presenting a guess as certain testimony.
3. At 4:10 p.m., counsel says the witness has a 4:30 flight and asks you to stop taking notes for the last 20 minutes and “just summarize.” What do you do?
Read the worked answer
You cannot summarize a deposition. The transcript must be a verbatim record, and a summary would omit questions, answers, objections, and rulings that may matter later. If the parties need to stop early, the proper course is to state the agreement on the record: “Counsel has advised that the witness must leave at 4:30; the parties agree to adjourn at that time.” Record that statement and the adjournment. If counsel wants to continue later, schedule a resumed session and preserve the witness’s right to review and sign. If counsel simply stops answering and leaves, record the time and the circumstances. Do not create a narrative summary, do not promise to “fill in” later from memory, and do not let the flight schedule change the standard of accuracy. If the witness is in the middle of an answer, ask to finish that answer before adjourning.