If you have never had to deal with an appellate trial transcript that is missing deposition testimony, consider yourself lucky. When deposition testimony is being read or a video deposition is being shown to a jury or trial judge, court reporters often see no need to “re-transcribe.” The theory is that since the deposition testimony was previously recorded, there is no need for a contemporaneous transcription of the testimony’s presentation at trial.
However, more often than not, problems arise when the parties start to put together the appellate record months later. Were only excerpts of the deposition testimony presented to the jury? Were objections made to portions of the testimony? If so, what were the judge’s rulings on those objections? What a party intends to introduce at trial is often not what is ultimately presented to the jury. If the trial attorneys did not create a “fool-proof” record of what actually occurred in the trial court, settling the appellate record could quickly become contentious–and very costly. Going back to the trial court judge months later expecting him to remember what actually occurred at trial–and to settle a record squabble between the attorneys–is never a fun process.
I Object, a blog devoted to error preservation in the trial tribunal, recently provided useful tips on creating a complete appellate record when deposition testimony is presented at trial. Check it out, and share your own tips (and war stories) in the comments below.