Court Reporter Working an Arbitration – Direct Examination or Cross-Examination?

I have been writing 250+ pages a day for the past week in a binding arbitration with three arbitrators.  As a deposition reporter, I don’t do court work, and I don’t do a lot of arbitrations.

The attorneys are calling witnesses to examine, direct examination, cross-examination, redirect…  BUT then one of the attorneys asked to call a hostile witness on cross, even though he was the first to ask the witness questions.  So is this cross or direct examination?

I asked one of the arbitrators, a retired Federal Court Judge, if I should designate the testimony as direct or cross.  He raised his eyebrows and said, “There is no real answer,” and changed the subject.

Then I asked two court reporters who have been working in court for the past 19 years in San Diego Superior Court.  They looked at each other and said that the court reporters in San Diego actually had hired an attorney to get an opinion, and the opinion is not clear.  The official court reporters suggested if the attorneys actually use the phrase, “I am calling the witness on cross-examination,” or someone says, “Hostile witness,” they use the cross-examination designation.

I finally suggested to the arbitrator that I would make it generic, like in a deposition, and write, “EXAMINATION OF JOE SMITH.”  He agreed that would be the best way to handle it.

I am curious if there are others who know what is appropriate and what a court reporter should use in this circumstance.  We never learned about this in court reporting school.

 

@rosaliekramm  Twitter

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3 replies
  1. Marge Teilhaber says:

    Your suggestion is what’s appropriate, and the arbitrator’s reply to your query validates this. I use EXAMINATION BY MR. DOE and the index reflects each time a new “Examination by” starts. Naturally the index also reflects each witness and the page they were sworn and the Q&A started.

  2. Word Warrior says:

    In dissolution arbitrations, I see this a lot, and I’ve always been instructed to call it “Cross-examination under Evidence Code 776.” Then if the witness is questioned by the other side, it’s “Redirect Examination under Evidence Code 776.”

  3. Lindsay Pinkham says:

    I am currently dealing with this exact situation – an AAA arbitration, with a retired judge from Arizona presiding. When this situation came up, I tactfully stated to the judge that it was the custom in LA Sup. Ct. (at least among the officials I’d talked to) to label it Direct Exam when a party calls an adverse witness, and to also include in the witness setup “John Smith, called by the Claimants as an adverse witness,” and also indicate it in the index. He chuckled as if I had said something foolish. So I went home and did a little research. Evidence Code 776 actually states that an adverse witness may be called and examined “AS IF under cross-examination,” which implies to me that it’s still labeled direct. I also found online a record of proceedings by a court clerk in a San Jose trial where she wrote the witness was “sworn and examined under EC 776 and direct examination commences.” And I found an article in a publication by the American Barr Assoc on Federal Rule of Evidence 611(c) (the equivalent of Calif 776) which states “Rule 611(c) thus permits the use of leading questions on a direct examination where the witness is hostile.” So, armed with these printouts, I’m going to corral the judge alone during a break and have a little discussion. They already told me to label it Cross, and that volume is in process at the agency now. I’m happy to label it any way they want – they’re the customers. But I just want to prove my point that I”m not pulling this stuff out of my hat!

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