How to Use Rough Draft Transcripts for Case Preparation
Using rough draft transcripts for case preparation is an underappreciated benefit of working with a court reporter who has the capacity to deliver them promptly after the end of a deposition. While they cannot substitute for certified transcripts in some contexts, rough drafts can give you an edge in prepping witnesses, crafting arguments, and pursuing fruitful lines of inquiry in discovery and at trial. Here’s an overview of how to use rough draft transcripts effectively for case preparation and steps you can take to ensure your drafts are sufficiently accurate to serve their purpose.
Rough Drafts Compared to Certified Transcripts
It’s easiest to describe rough draft transcripts by what they are not. Unlike certified transcripts, you generally cannot use rough drafts:
- As evidence in a summary judgment motion;
- To impeach a witness at trial;
- As proof of the deponent’s sworn testimony.
The reason you can’t use a rough draft transcript for these purposes is straightforward enough. Certification of a transcript serves to ensure its finality, accuracy, and authenticity. A rough draft has none of these qualities — by definition it’s incomplete and subject to correction by the witness and the parties.
The Many Uses for Rough Draft Transcripts
Now that we’ve gotten what you can’t do with a rough draft deposition transcript out of the way, let’s talk about what you can do. As many litigators have discovered, if you work with a deposition service capable of delivering a rough draft transcript to you within minutes after the end of a deposition, you can put that draft to work in myriad ways that assist in case preparation. Here are just a few examples.
Planning Your Next Deposition
Depositions build on one another. What you learn from today’s deponent you aim to put to use in questioning tomorrow’s. And as we all know, sometimes it’s the subtlest of phrasing and terminology that can affect the accuracy of a question or the materiality of an admission.
Rough draft transcripts make the task of building from one witness examination to the next easier and more precise. With a rough draft in hand, you don’t have to rely on memory alone to recall the phrasing you used in a question or the terminology a deponent employed.
Now, in shaping questions for your next witness, you have a reasonably accurate (see below) record to refresh your recollection, ensuring consistency in your questions and helping to identify variations in the answers you receive.
Prepping Your Witnesses
Rough draft transcripts are also a powerful tool to use in prepping your client and other friendly witnesses for deposition (or trial) testimony. They enable you to compare and contrast how witnesses answer similar questions. They illustrate an opposing counsel’s inquiries and techniques. And they may assist in refreshing your client’s memory about key facts.
We should note, of course, that any reasonably competent opposing counsel will ask your witnesses about the documents they reviewed in preparing to give sworn testimony. So, it’s up to you to weigh carefully whether to show the witnesses you prep a rough draft transcript of another witness’s deposition, which in some cases may expose your side to accusations of “getting stories straight” and so on.
But even if you merely use a draft transcript as a rough script for a mock examination of your client, it can do wonders in keeping your client calm, focused, and controlled when actually under oath.
Pursuing New Lines of Discovery
Depositions, if successful, uncover useful facts and insights that prompt new lines of inquiry. Lawyers can use a rough draft transcript to craft new discovery requests that identify documents or information in more or less the same terms a witness used.
And if your deposition service has a quick turnaround time, you can serve those new discovery requests in a flash — within an hour or two, if you’re so inclined. That kind of speed and efficiency allows you to take full advantage of the limited days available in your discovery window rather than losing time waiting for a certified transcript to arrive.
Getting Started on Draft Motions
In the same vein, having a rough draft transcript in hand within an hour after a deposition ends gives you the opportunity to begin drafting dispositive motions based on that testimony immediately. To repeat, you cannot cite rough draft transcripts as evidence. But you can use them as guideposts in crafting your motion arguments. Just make sure you only cite the exact language and page/line numbers from a certified transcript in any document you file with the court.
Deposition Summaries and Client Updates
Some lawyers like to have summaries of witness testimony prepared for their files and to share as updates with their clients. Rough draft transcripts make the task of pulling those summaries together a snap.
Lawyers who know they’ll have a rough transcript available shortly after a deposition ends don’t need to worry about taking meticulous notes throughout a deposition or about reconstructing their recollections before their memory fades or they lose focus at the end of a long day. You might even choose to share a draft transcript with your client — subject, as we said, to caveats about the potential downsides of doing so.
It’s never ideal to have to bring a discovery fight to the court. But if that’s where your case is headed, it helps to have a rough draft transcript in hand to assist you in making your argument for relief or sanctions. Once again, court reporters strongly discourage citing draft transcripts in any court filing. But that doesn’t stop you from using a rough transcript as a guide for paraphrasing troubling information that emerged or in describing an opposing counsel’s obstreperous conduct.
Tips for Improving the Accuracy of Rough Draft Transcripts
To use a rough draft deposition transcript to maximum effect, it helps for it to contain as few errors, misspellings, and other flaws as possible. Of course, it’s up to court reporters to ensure the quality of their work product. But you can also take simple steps to improve the accuracy of the first draft you receive.
Share Spellings and Terminology in Advance
Some of the most common errors that appear in rough draft transcripts consist of misspellings of proper names and case-specific terminology. You can effectively eliminate those mistakes, however, by sending your court reporter a list of potentially tricky names and terms in advance of the deposition.
Most court reporters today use stenographic technology that allows them to pre-program their devices with specialty words and phrases. Plus, by giving court reporters a heads-up about spellings, you reduce the likelihood of the reporter interrupting the flow of a deposition to ask for clarification.
Speak Slowly, Clearly, and One-at-a-Time
It never hurts to repeat the plea court reporters have made to lawyers for time immemorial — speak slowly, enunciate, and never talk over a witness or opposing counsel. Lawyers who violate these rules make a court reporter’s job immeasurably harder. Your cadence, enunciation, and self-control as a questioner correlate directly with the number of errors you’re apt to find in a rough draft transcript.
Use Purpose-Built Tools and Services for Remote Depositions
Discovery practice has been on a steady trend toward remote depositions for years, and it only accelerated during the pandemic. Today, lawyers and witnesses are as likely to elect to conduct a deposition remotely as they are to show up together in a conference room.
But that doesn’t mean that all lawyers have figured out how to conduct remote depositions effectively. Many — too many, if you ask us — have tried to make the transition by employing a mishmash of digital tools and analog techniques in an effort to recreate the look and feel of an in-person deposition.
The result isn’t pretty — an online meeting over Zoom or a similar platform in which lawyers, witnesses, and court reporters struggle with glitchy audio, inadequate screen-sharing tools, and a limited or non-existent ability to share and mark exhibits. All of which, again, leads to sub-par rough draft transcripts (if the court reporter even offers them).
Lawyers who thrive in the new remote deposition paradigm have learned that the key to unlocking the potential of remote depositions — and in turn ensuring quality rough draft transcripts — is to turn over the administration of a deposition to a single-source deposition service that offers purpose-built tools designed to make taking remote depositions at least as efficient and effective as an in-person examination.
Remote Legal is a remote deposition service provider that schedules technologically proficient court reporters for you and administers depositions on a propriety platform that offers everything you need for a successful, complete deposition: exhibit pre-uploading and storage, on-the-fly document uploads, seamless exhibit sharing and marking, time-stamped witness video capture, live voice-to-text streaming, breakout rooms, and rough draft transcript delivery within 30 minutes after a deposition ends. Contact us today for a demo and learn how we can help you take full advantage of a rough draft deposition transcript in your case preparation.
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