One of the duties of court reporters working in depositions is the marking of exhibits. It might seem very basic, when an attorney needs an exhibit marked, it is done by the court reporter, and bam – it’s done.
But there is a lot for attorneys to be conscious of as well as court reporters if the ultimate goal is a clean record.
- When an attorney wants an exhibit marked, she/he needs to hand the exhibit to the reporter and STOP TALKING to allow the reporter to place her/his mark on the original exhibit document.
- If a court reporter wants to be efficient, and the attorney agrees, the reporter will premark exhibit stickers and allow the attorney to place the stickers on the document.
- If the attorney is given permission to place the stickers on the document, she/he must first be instructed by the court reporter to place the sticker on the right side of the page (never on the left where the document will be bound with holes punched in it). The exhibit sticker must be, if possible, at least a quarter inch away from the edges to allow the copy machine to “shrink” the page, which happens on all copy machines.
- If there is not enough room on a page to place an exhibit sticker, use the back side, and the exhibit becomes a two-page exhibit. This should happen rarely. I would say it has happened to me less than 10 times in my 30 years of court reporting.
- If the exhibits are originals that cannot have anything permanently stuck on them, I suggest the court reporter premark stickies so the attorney can put them on the page and a copy can be made and physically marked. (Note: It is a good idea for court reporters to have stickies that are unusual colors so they stand out from the witness’ stickies.)
- When I have expert witnesses or percipient witnesses bring in a file that has no rhyme or reason to them, I will suggest to the attorneys we take a short break so I can number the pages. For instance, Exhibit 2 will have pages 2.1, 2.2., 2.3, et cetera. I will number the witness’ (original) set, and the attorneys will number their sets. Then when we go back on the record, it is easy to refer to the page of the exhibit, 2.12, et cetera. That makes a better record for the attorneys and saves the court reporter a lot of time when looking up quotes or exact numbers later when scoping the transcript. You know exactly what page the witness/attorneys referred to.
- Paginating numbers by the reporter, Exhibit 2.2, 2.3, 2.4, et cetera, makes the clerical staff at the court reporting agency incredibly efficient. Copy machines malfunction. With the numbering of exhibit pages, it is easy for the staff to keep on track and get the exhibit pages in order.
- Don’t be shocked if you have to mark inanimate objects. Have your permanent sticker ready. Then ask the attorneys who is keeping possession of the object. Typically, one of the parties will keep possession. If they want the reporter to keep possession, don’t worry. Just take it back to your office and let them know. Be sure to get direction for all counsel on the record what is to happen with the exhibit and when.
- Color – large size exhibits. Ask attorneys if they want color copies/large size. This is especially true for blueprints. Blueprints cost a lot of money to reproduce. When you have an unusual exhibit, at the end of the deposition ask for direction from the attorneys what to do with it. You need a stipulation on the record by all counsel if it is to stay in someone’s possession other than your own. You need a stipulation about anything out of the ordinary happening with exhibits ON THE RECORD.
- Exhibit worksheets. My firm (and many others) have an exhibit worksheet. It is essential to take exhibit worksheet seriously and fill it in including the witness’ name, et cetera. Many times the firm is using the exhibit worksheet to start a new case and upload. The staff has to have the absolute correct information.
- Premarked stickers/stickies: Attorneys expect reporters to keep track of exhibit numbers as they are marked – fair or unfair? It doesn’t matter. Some attorneys are not conscious of the court reporter and exhibits. Either the court reporter cordially slows down the attorney and writes down the exhibits as they are being marked or the court reporter has some tricks up her/his sleeve to keep track.
- Trick 1: Premark exhibit stickers so attorneys can’t go wrong.
- Trick 2: Premark exhibit stickies so attorneys can’t go wrong.
- Have a paralegal (if one is present) keep track of exhibits with you to correct attorneys if they go wrong. I always ask a paralegal to be my friend and help me when attorneys are out of control marking exhibits.
- If anything happens unusual with exhibits, get it on the record. If someone is going to keep the exhibit in her/his possession or if it is to be produced, note it in the index:
- Exhibit 1 – Airplane model (not attached – kept in possession of Mr. Smith)
- Exhibit 2 – Airplane model (not attached – to be produced)
- Know that attorneys are expecting the court reporter to have possession of all exhibits at the end of the deposition. No matter how crazy they were in a deposition, take the time to count the exhibits up. Don’t let anyone leave until you are assured they are all there. You probably know when it is the last break of the day. Take that time to start organizing exhibits and put them in order. I will throw them on the floor so I know no one has a chance to take anything out of the pile without it being super obvious. Every reporter has a story about leaving without an exhibit, and then their life is wasted trying to find who has it, and it can become a very stressful situation.
Being a court reporter has a lot of important responsibilities. Exhibits are a huge part of our job. We have to get it right.