August 1998

Making a Better Record
Tips from a Court Reporter
to His Lawyer Child

by William Macauley

My dear child:

Congratulations on passing the Bar. You ask if I can pass along tips from my career as a court reporter that would help you in your chosen career as a trial lawyer. Boy, can I! Here's a buffet of tips you can choose from which I guarantee will help you make a better record in your practice and make you more record-conscious.

Lawyers spend years learning their craft and draft pleadings meticulously, yet when one speaks really well, we view him with wonder, gratitude and, yes, admiration. I feel safe in saying, with all due respect, that 90 percent of all trial lawyers leave room for improvement. Here are some omissions and commissions that apparently aren't dwelt upon in law school or CLE seminars, and that will help you produce a true, complete and impartial record.

Grammar Not Important

For openers, court reporters customarily, within limits, repair ingrammaticisms of court and counsel as a professional courtesy. A witness's words, of course, remain inviolate. So if you say "was" instead of "were," or mumble "er" or "uh" a few times, as we all do, don't worry; the appellate court will never know. My test on so editing has always been: "Is it meaningful?" Not so, however, with the following:

Poor Enunciation

Judges have said to me: "Mr. Reporter, the witness speaks so fast I can't understand him. Will you please read back the answer?" Even though at times we must write five words a second, speed itself is rarely the problem. Slurring, poor enunciation, is. Try hard to enunciate clearly. As examples, a refrigerator has both installation and insulation; people ail with sinusitis and synovitis; abduction and adduction aren't synonyms; the prefixes hyper and hypo, inter and intra radically change meanings. Did the pavement crumple or crumble? Did the doctor check the patient's fiscal or physical condition? Was he racing horses or raising horses? Were the stock certificates worthless or worth less? Did the poor or pure lady so list or solicit the gentleman? Did the money go to the state or the estate? Was it massive structures or mass of structures? And there are thousands more. Context may help, but not always. A witness may be deciphering fragmented handwritten notes. (Try saying these two words aloud: once, wants.) Help me to decide accurately. I've got other hot grounders to field. Yesterday a neurosurgeon expounded on dysdiadokokinesia, then an orthopod spoke on spondylolysthesis. Today a forensic chemist mouthed methylamphetamine and methyl-aminopropane for two hours.

In my early 20s, I was an official reporter for the United Nations. A-bombs were brand new then, international tensions ran high, and my most thrilling split second was spent puzzling whether the Soviet delegate, in fractured English, was proposing a resolution or revolution. I feared any error I made could vaporize more than just my career.

Speak Loudly and Clearly

Word swallowers gulp a sentence's first or last word, often confusing meaning.

Example:

Q. Was it raining earlier?
A. Yes, it was.

Suppose the reporter and six jurors heard earlier and the witness and six jurors didn't. "If" is a word commonly swallowed at the beginning of a sentence and, lo, a hypothesis becomes a declaration. You've heard people say "Feud gone," for "If you had gone" or "Jeet?" for "Did you eat?"

Court reporters, as guardians of the record, must at times interpret meaning and form conclusions. Punctuation, or lack of it, can reverse meaning.

Here's a real-life example:

Q. Was the knife eight inches long?
A. No shorter.

If the witness pauses after "No," and I insert a comma, butcher knife becomes a paring knife. Inflections, pauses, facial expressions, accents are helpful clues to a reporter. Veteran trial lawyers are acutely aware of this.

Reading

Facing the witness or the Court, you may come through fine. But when you bend your neck to read something lying on the counsel table, your windpipe kinks a bit, your Adam's apple jams into your larynx, and instead of your client going to Winnemucca, Nevada, the reporter writes, "He went amuck in Nevada." Honest, you may laugh, but it happened. And don't smirk if the reporter asks you to spell Mr. White's name. It could be spelled Wight, Weit, White, Whyte, Wite. It might even be Wyatt.

Numerals

Be mindful that 13 can be slurred to 30, 14 to 40, and so on through the teens. And if it's dollars or apples or steamships, say so. If I hear "twelve-fifty" I can't certify $12.50 or $1,250 or $12,050. I must pass that buck on to the appellate court for interpretation. Worse, maybe, suppose both sides rest and the jury wants it read back. You must listen helplessly, unable to clarify.

Echoing

This nervous habit is an offspring of the unwed couple, Tailgater and Overlapper, about which more later. Example:

Q. Where do you live?
A. 22nd Street, Cicero.
Q. Cicero. How long have you lived there?
A. About four years.
Q. Four years. Where did you live...

Harmless though this is, it wastes time and transcript and causes jurors to yawn.

Overlapping and Tailgating

A lawyer's demeanor often is contagious and infects a witness. Combativeness, loudness — even calmness — feed upon themselves. The Overlapper/Tailgater's anxiety won't let the witness finish, and once he's infected, the witness won't allow the lawyer to complete the question. The transcript reads:

Q. Did you call the police —
A. Yes, I did when —
Q. — at the time of the —
A. — I first discovered —
Q. — accident?

Every court reporter who's practiced for more than a week has heard this kind of colloquy. I try — Lord knows, I try — never, ever to interrupt, but to remain as unobtrusive as the furniture. If you're cross-examining a witness and backing him into a corner, and if he knows you're backing him into a corner, and if you know he knows, I sure don't want to break the spell. At times, though, I must, if we are to get a true, complete and impartial record.

Indicating

A reporter shouldn't editorialize more than a little bit. When a witness says, "He stabbed me here and here," all a reporter can do is write the word "indicating" in parenthesis after the answer. It's your job as lawyer — as a major participant in making the record — to say, "Let the record show the witness pointed to his left shoulder and abdomen," or ask opposing counsel to so stipulate. Be alert to nods or shrugs as answers, or a handclap to describe the force of an impact, with a verbal "whoosh" or "wham." In a deposition or in court when I see this happening I resist the urge to speak up to clarify; your opposing counsel sits impassive, hands folded. He's recognized it; he's mute. I butt out.

Watch out for gestures accompanied by pronouns: this, that, him, she, etc. If you don't now know, you should learn the dimensions of your office (for depositions) and the courtroom. When a witness says, "From here to that door," you'll have a distance to approximate for your record. (Judges usually, but not always, know the dimensions of their courtrooms.)

Off the Record

When counsel agree to go off the record you may see the veteran reporter stand up and walk a few steps from his machine, or at least expose his hands. This is his tacit signal to lawyers that he's inoperative. Let him know, however, when you're back on the record.

Interpreter

Ideally, the interpreter repeats spoken words as precisely as possible. If you say, "Ask the witness his name," that's what he says, verbatim. And the reporter writes just that. In court, the judge may intercede and conduct a bit of continuing education of the bar. Frame your questions as though the witness understands you. If, as frequently happens, the witness responds partly in English and partly in a foreign tongue, that's the reporter's worry, not yours. He's been there before.

There are many more obstacles we each face in making a good record. Jet planes, their sonic booms, coughs, sneezes, sirens, automobile backfires, rustling papers, air conditioners, telephones, sliding chairs on a wooden floor, all interfere. We must do the best we can with what we've got. As humans, we may err. If you have the slightest doubt that a reporter got it, ask him to read back. He'll be glad to; it's his job. Summing up, of all the problems in making a good record, from my point of view, poor enunciation ranks highest. A favorite story of a great judge I once worked for illustrates this. 

Two Englishmen peered out the window of a train approaching a station.
One asked, "I say, is this Wembley?"
"No," his friend replied, "it's Thursday."
"By Jove, so am I," the other said, "Let's get off and have a drink."

Well, my child, that's about all I can think of now. I'll be seeing you in court. Oh, yes, one other thing: Be nice to your court reporter.

All my very best, truly, completely and impartially,

Your Old Man

P.S. Identify Yourself. Carry Cards.

One morning, right before an ongoing trial in a federal court, a lawyer appeared, made a brief motion which the judge granted, saying, "Fine, Counsel. Give the Clerk your card." The lawyer grinned, patted his chest and said, "Sorry, your Honor, I don't have any cards with me." The judge stiffened and said, "Counsel, please approach the bench." The lawyer's smile sobered. "Who is the senior partner in your firm, Counsel?" On hearing his name, the judge said, "Tell him to appear here at 1:30 this afternoon." The lawyer said, "Sorry, your Honor, but he is in trial and can't make it." "Counsel, are you telling me I must send a couple of United States Marshals to assist him?" Needless to say, the senior partner did appear without the aid of marshals, and there followed a tongue-lashing that made even us court reporters wince. Word of this, however, traveled swiftly throughout that legal community, and henceforth all lawyers appearing in that court carried cards.

Federal judge; lifetime appointment.

P.P.S. Identify Yourself. Carry Cards. (But Be Careful.)

A court reporter at a deposition asked a lawyer for his name. The lawyer said, "I'll give you my card," took one from his wallet, and, without looking at it, handed it over. Problem was, it wasn't his card, but that of another lawyer who had given it to him the day before. The court reporter completed the deposition, noting the lawyer named on the card on the appearance page and throughout the ensuing proceeding. When the lawyer whose name appeared on the card received a copy of the deposition, he immediately returned it with the reporter's invoice and a letter saying, "I don't know what's going on, but I wasn't at this deposition, I don't recognize the captioned lawsuit, and I definitely am not going to pay your bill." The reporter made some phone calls, and eventually corrected things, but that's another story.

 William Macauley, now retired in Washington state, began his career in 1946 as an assistant reporter in Philadelphia Common Pleas Court. He has worked in various municipal, superior and federal courts, and he reported all plaintiff's depositions in the "Pinto" case, as well as the depositions of H. R. Haldeman and Richard Nixon. He was also lead reporter in the WPPSS cases. This article is his first professional writing effort.