My wife has a “new” show, and it’s just “her” show. She started binging Parks and Recreation on Netflix a couple of months back. I didn’t notice at first, but once I realized she was watching the series from start to finish, I made a comment about watching it with her. I had enjoyed the show during its original run from 2009 to 2015 and hadn’t viewed it in years.
She wasn’t interested in letting me in on the binge. We have different schedules (she’s a part-time stay-at-home mother and business owner), and she made it very clear she was going to continue watching the series on her own time and at her own pace. She has no problem with me sitting in on an episode, but she watches when she’s ready, and I’m only along for the ride.
‘THE TRIAL OF LESLIE KNOPE’I haven’t seen every episode of the series, so it was either a case of inevitable consequence or just plain luck when “The Trial of Leslie Knope” popped up on our screen one evening. For anyone interested, it’s the ninth installment of the series’s fourth season.
By this point in the story, co-workers Leslie Knope (Amy Poehler) and Ben Wyatt (Adam Scott) have developed a romantic relationship. Once their relationship is revealed to Chris Traeger (Rob Lowe), each is faced with an “ethics trial” to discover whether either or both have violated any municipal rules or laws due to Ben operating as Leslie’s superior in the workplace hierarchy.
COURT STENOGRAPHERSWhen I first realized that Parks and Recreation was presenting me with fodder for a future column, I was understandably excited. However, my expectations were tempered as the first half of the episode played out. The majority of the episode focuses on Leslie’s administrative hearing. I wasn’t interested in writing about yet another series’s portrayal of a courtroom scene from the perspective of believability.
Luckily, one of the running gags throughout the “trial” deals with the court stenographer tasked with transcribing the hearing. Seeing as how the show is a comedy, you can imagine the jokes that ensued.
Court stenographers, or “court reporters” as they are commonly referred to, are rarely, if ever, the focus of pop culture. Their contributions to the inner workings of the court system are often left overshadowed and underappreciated. However, proper and reliable conclusions to controversies would not be possible without their invaluable work.
This is because court reporters are the primary individuals tasked with maintaining records of what was said in a particular proceeding. Many may read that sentence and think, “Well, of course!” But the importance isn’t just having the record; the importance is having a permanent record. This is especially true in criminal cases where attempts at collaterally attacking a conviction are often lodged many years after the conclusion of the original court proceedings. If a new attorney plans to take on the case, they will need access to a complete and accurate account of what actually took place.
In addition, court reporters are invaluable resources and often possess a wealth of useful knowledge. Consequently, I try to get to know court reports I practice in front of on a professional and respectful basis. They can be extremely helpful. Think about it: They listen to disputes and conflicts for a living. I’m sure other issues may need transcribing, but I only use their services through my law practice. Whether freelance or employed by the state, court stenographers have an incredible depth of insight into argument and how those arguments resonate.
This is especially true when it comes to jury trials. It’s the rare trial attorney who argues a case during every jury term. At least where I’m from in Oklahoma, it’s common for court reporters employed by a district judge to transcribe at least one jury trial approximately 20 times a year. Extrapolate that over an entire career, and you end up with a ton of experience reading juries and knowing the difference between what is and isn’t working in a given case.
Many reporters will give you feedback if you simply ask. They’re probably unlikely to solicit a bet on the outcome (like the reporter in “The Trial of Leslie Knope,” but any help is appreciated when facing down the prosecution on behalf of your client. You’d be a fool not to respect their opinion … assuming they’re willing to give it to you.
I travel all over the state of Oklahoma in my criminal defense practice, so I don’t always have the luxury of practicing in front of the same stenographers. Over the years, I’ve learned a few tools of the trade that can open up the door of conversation with a court reporter in a new venue.
The most obvious tip is to take the initiative. I always approach every court reporter—whether familiar or not—and hand them my business card first thing. That simple gesture accomplishes two goals: 1) it gives them the correct information necessary for the record they are going to create and 2) it starts a potential conversation.
If you are friendly enough, it’s easy to talk to anyone willing to reciprocate. I’ve also found that handing over your card can make enough of an impression that, even if you aren’t able to continue the conversation, the court reporter will more than likely remember you the next time you’re face to face.
MANAGING YOUR MURMUR AND MODULATIONAll things considered, though, the best way to show your respect for a court reporter and further your professional relationship is to make their job easier. During “The Trial of Leslie Knope,” the court reporter is visually and audibly annoyed at the tempo of testimony. That’s pretty true to form. I know court reporters get frustrated with the attorneys who advocate before them, because I’ve had court reporters get on to me before.
It was earlier in my career, and I had a habit of being a bit more soft-spoken than some reporters cared for. Part of the “issue” is that I don’t take one approach to questioning witnesses. Some attorneys only have one speed: bulldog or puppy. I’ve achieved the best results for my client when I use professional discretion regarding the timbre, volume and cadence of my speech.
A very experienced court reporter told me during a trial that she was having a difficult time understanding me when I spoke at a lower volume. I explained how and why I speak the way I do, focusing on the dynamics of my speech pattern, and she made an excellent point: If the judge allows you to move around or approach the witness, ask to approach. That way, you will be closer to the reporter as well (keeping in mind your position relative to the jury so they can hear you too). It made a lot of sense, and I still use that method today.
Another easy tip? Watch your “crosstalk.” If there is one thing that court reporters universally hate, it’s attorneys and witnesses speaking over each other. It’s easier said than done in the heat of jury trial, but the best practice is to wait until the witness answers prior to asking additional questions. I know it’s tough, especially when trying to control a difficult witness, but I think staying conscious of the issue will garner more respect from the reporter, the judge and probably the jury as well.

Adam Banner
Adam R. Banner is the founder and lead attorney at the Law Offices of Adam R. Banner, a criminal defense law firm in Oklahoma City. His practice focuses solely on state and federal criminal defense. He represents the accused against allegations of sex crimes, violent crimes, drug crimes and white-collar crimes.
The study of law isn’t for everyone, yet its practice and procedure seem to permeate pop culture at an increasing rate. This column is about the intersection of law and pop culture in an attempt to separate the real from the ridiculous.

Court reporting is a difficult career path that not everyone is suited for. All over the country, court reporters must go through rigorous training and certification requirements.  Top-notch court reporters continually strive for higher levels of excellence throughout their careers, such as by completing continuing education programs. Arguably, the word that most often comes to mind when defining excellence in this field is “accuracy.” It’s true that these professionals must be accurate at all times, but the following abilities and characteristics are also crucial.

Third-Party Neutrality
Whether in a courtroom, at a deposition, or in a boardroom, neutrality is crucial. Court reporters abide by a strict code of ethics, which prohibits them from commenting or opining about a case. Even if an attorney or other party engages in chitchat with a court reporter after a deposition, the court reporter will not offer speculation or opinions about the testimony.

Strict Confidentiality
Legal depositions, hearings, and trials often bring sensitive information to light. Witnesses may need to answer questions about their finances, or testify about personal situations. Even when the information they record is not of a sensitive nature, good court reporters will never repeat it because they understand that confidentiality is a top priority. Additionally, these professionals hold in confidence all written records they see and off-the-record conversations they hear.

Consistent Punctuality
Excellence in court reporting requires consistent punctuality. It isn’t acceptable for these professionals to show up late to a deposition or a trial, as doing so would delay the entire proceeding and derail everyone else’s schedule. Excellent court reporters always plan to show up early to assignments. This allows them some time to set up their equipment and review any last-minute information from the attorney, such as industry-specific terminology or acronyms that may be relevant to the testimony.

Selective Assertiveness
Much of the time, court reporters are the proverbial fly on the wall. They listen attentively and record every word spoken on the record, but they don’t often speak up, and they never call attention to themselves unnecessarily. However, the best court reporters understand that certain situations do require assertiveness. A court reporter will speak up if he or she needs a witness to talk louder or repeat something, because this ensures accuracy.

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If a picture says a thousand words, a long pause can say just as many.  When you are deposing a witness and you do not videotape it, those long pauses, those eye rolls, those incidents of the witness looking at his attorney as if to ask for the answer, the snarl, the frantically trying to find the answer in a document, none of that is reflected on that dry and boring paper transcript.  And if you go to trial and you read that deposition into the record, or even parts of it, you might as well just give the jurors a blanket and pillow for that nap they are about to take.  Time and time again, I have watched those depositions being read, and the jurors did not get one thing from it.  They don’t listen, some of them can’t hear, some of them can’t comprehend things that are oral, and let’s face it, we are in a digital age, and jurors expect to SEE something.

Even an adjuster can be swayed by how well or poorly a plaintiff or defendant’s testimony is, and they will use that to evaluate the value of the case.  If you have a plaintiff with a good case, yet they can’t tell the story to save their life, then that case value just went to pot.  If you have a defendant with a great defense, but they act like a total jerk, or they seem sketchy, you’ve just lost your defense.

In an actual deposition, we once had a deponent testifying as to how their shoulder was so injured that they couldn’t do hardly any household tasks, including putting a gallon of milk into the refrigerator, run the vacuum, those type of things.  Later in the deposition, the deponent’s cell phone rang, and she whips her injured shoulder around, grabs a large and obviously heavy purse, throws it up on the table, all without indicating one bit of pain.  If that deposition had been videotaped, the case would have been over.  But it wasn’t….  (Click here to see re-enactment)

Consider this example as told by John Fisher, P.C., who does medical malpractice.  “In a birth asphyxia case that I handled ten years ago, I learned why videotape is crucial for a deposition. In the deposition of a labor and delivery nurse, the question posed was whether good and accepted nursing standards required the nurse to notify the physician when confronted with non-reassuring fetal heart tracings. The ob nurse paused, then looked up at the ceiling (as if looking for an escape hatch), and then she finally answered, “That depends.” The answer was meaningless, but the way that he answered the question was pure gold.
 
When the lawsuit went to trial and I played the videotape of the nurse’s deposition testimony, I watched the expressions on the jurors’ faces as they saw the nurse cringe while answering the question. After the trial concluded, the jury later told me that the nurse’s answer to this single question was the reason they had decided to side with the plaintiff. Let’s get this right: a $400 videotape deposition provided the basis for a multiple seven figure recovery ($4.1 million to be exact).
 
The videotape brings the deposition to life and keeps the jury interested, while the read-back of a deposition is boring, uninteresting and has no impact on jury deliberations. Juries snooze through the read-backs of depositions and I have not seen, or heard of, single case where a jury based its verdict on a read-back of a deposition.”

Here are eight reasons to videotape every deposition:

1. Accurately preserves the testimony.  Most communication face-to-face is nonverbal.  The regular deposition does not indicate much of anything with respect to mannerism, tone of voice, attitude, demeanor, poise of the witness, hesitation when responding, and much, much more. You MUST catch the “how” and not just the “what” of what is being said.
2. Vague and obscure answers are usually eliminated.  Witnesses who are being taped tend to be more direct, answer with more detail and as if they are speaking to the judge and jury.  
3. Shenanigans eliminated.  The videotape deposition eliminates virtually all of the shenanigans and games played by some attorneys in depositions.   {Click to see example}
4. Judge and jury appreciation.  Judges and jurors appreciate watching a deposition on video much more than having it read to them in whole or in part.
5. Impeachment intensity increased.  A video clip is far more effective and it significantly increases the intensity regarding impeachment of a witness. 
6. Witnesses’ activities captured and demonstrative evidence utilized more effectively.  In many depositions, witnesses are asked to point to certain areas on their bodies. Sometimes they are asked to give demonstrations. In other instances, witnesses in deposition are asked to draw sketches of scenes. The list goes on and on. All of these activities are preserved completely in the videotape deposition. Unfortunately, they are only “described” by lawyers in the regular deposition by the classic phrase, “Let the record reflect that the witness has…..” and many times there is nothing in the record about these activities at all.
7. Opposition attention-getter.  Your opposition knows you are serious about the litigation and trial of your case when you start taking depositions by videotape.  
8. Atmosphere change.  The atmosphere within which a videotape deposition is taken is ordinarily far different from the atmosphere of a regular deposition, being more formal, more intense, more serious, and more like the atmosphere in an actual courtroom where a judge and jury will be present. 

All of the above factors should be considered in your decision-making process regarding the setting of a deposition as a videotape deposition or a regular deposition. And don’t forget to notice your deposition correctly.  We recommend that you simply never fail to consider taking a given deposition as a videotape deposition (and this holds true with the filing of a “cross-notice” of a deposition taken by another party, as you may well want it videotaped). 
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Don’t kick yourself the next time a witness blows up in a deposition and you didn’t have it videotaped.  Capture those emotions and demeanor so that your settlement offers come faster and are worth more.  If every case is important, you should videotape every deposition.
Schedule your next videotape deposition with Realtime Reporters and ask for our 10 percent discount for the videos for that entire case!