The Bench Conference the Attorney Wants Erased
You are the certified court reporter for a three-day civil jury trial in the Circuit Court of Hinds County. During the plaintiff's direct examination, the judge calls a sidebar. The courtroom deputy activates the white-noise machine, and the judge says, 'This part is off the record.' The lawyers discuss a settlement number for about four minutes. Later, back on the record, the witness blurts out, 'I didn't mean to sign that.' Defense counsel objects; the judge says, 'I'll sustain it; strike the answer.' After trial, defense counsel sends you a letter: 'Please delete the settlement sidebar and the stricken answer from the transcript, and change my objection from sustained to overruled-the judge told us later she reversed herself.' You also find a 14-second passage in your audio where the witness's answer is unintelligible because of coughing. Your stenographic notes show the words, but you are not fully certain. The transcript is not yet certified.
1. What should the certified transcript contain regarding the sidebar, the witness's blurted answer, and the judge's ruling?
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The sidebar should not be transcribed as substance because the judge placed it off the record. The transcript should note only that a bench conference was held off the record, if that is your normal practice, so the record shows a pause without disclosing settlement discussions. The witness's blurted answer is different. It was spoken in open court before any ruling, and the judge's 'strike' does not physically remove it from the record. A certified transcript must preserve what was said, the objection, and the ruling so an appellate court can review whether the strike was proper. Include the answer verbatim, then the objection and 'Sustained; answer stricken.' You should not change 'sustained' to 'overruled' based on an attorney's report of a later conversation. If the judge actually changed the ruling, the judge must correct the record by court order, not by an ex parte request to the reporter.
2. How should you handle the 14-second unintelligible passage?
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Do not guess or fabricate words. First, replay the audio and compare it carefully with your stenographic notes. If the notes and context make the answer clear beyond reasonable doubt, transcribe it. If you remain uncertain, mark the passage as '(inaudible)' or '[inaudible]' and preserve the original notes. Do not substitute what you think the witness probably said. If the bench and parties need a ruling on the passage, they can request a hearing, but the certified transcript should reflect the limits of the audio. Keep your original stenographic notes and any audio file because they may be needed if the transcript is challenged. Accuracy and transparency are more important than a smooth-looking page.
3. How should you respond to defense counsel's letter?
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Respond professionally and in writing. Explain that a certified transcript is the official record and cannot be altered at a party's request. Before certification, you may correct a typographical or clerical error you independently verify, but you may not delete testimony or change a judge's ruling because counsel asks. If counsel believes the ruling was later changed or that the transcript contains a substantive error, counsel should file a motion with the court. Only a court order can authorize a substantive correction after certification. Offer to review the transcript with counsel and the court, but do not surrender your original notes or alter them. Preserve the letter and your response in your files.