COURT REPORTERS AND LEGAL VIDEOGRAPHERS – WHAT TO DO WHEN COUNSEL SAYS "OFF THE RECORD"

Court reporters are the “guardians of the record.”  The question is, when does the “record” start and stop?

The answer might seem straightforward when a court reporter reads the Federal Rules or the California Code of Civil Procedure 2025, but in practicality there can be a lot of confusion by court reporters and attorneys as to when someone is off the record.

As a working court reporter and firm owner, I have been challenged by attorneys who thought they were off the record or wished they were off the record or hoped to have been off the record.

It would seem obvious that when an attorney says, “off the record,” in a proceeding and no one immediately says, “No, we are still on the record,” that everyone in the room is in acquiescence.    But litigators are smart and things can happen suddenly that can result in a court reporter’s nightmare.

Recently I heard of a situation in which the one attorney said, “off the record,” and everyone got up, started moving around, and one of the attorneys was walking out the door and said to the other, “You are a (blank).”  Immediately the attorney who was called a (blank) turned to the court reporter and said, “Did you get that?”  The reporter replied, “No, we were off the record.”  The angry attorney retorted, “I never said we were off the record.”

In my opinion, court reporters need to be proactive, and having been in the line of fire for the past 29 years, I have learned a couple of best practices:

  1.  When a party says, “Let’s go off the record,” I immediately look into the eyes of the other counsel and say, “Do you agree we are off the record?”  Many time people in the room laugh because it seems to be a little dramatic, but I am serious when I ask the question (with a little smile at the end) and get a verbal “yes.”  It is kind of like when you sit at the bulkhead row of a Southwest Airlines flight.
  2.  Once I get a verbal yes from the different parties, I put my hands in the air so everyone can see I am not writing.  Once again, people might laugh a little, and I answer, “I just want to make sure.”
  3.  My favorite videographers also check with opposing counsel when an attorney says, “Let’s go off the record.”  Our videographers turn to the other counsel and ask, “Is it okay to go off the record?”   I have never heard anyone say anything negative about his practice.  Instead, I have found attorneys respect the videographers checking with all counsel.
  4. Another bad situation is when the videographer is signing off, everyone has agreed to be off the record, and the attorneys decide to keep talking and sometimes say expletives.  (It has happened.)  The reporter is writing the videographer’s read-off, and at the same time can hear the attorneys talking amongst each other.  I have had the situation in which the attorney turned to the reporter and said, “Did you get that?  He just called me a (blank.)”  In my professional opinion, once the attorneys tell the reporter they are off the record, everyone has agreed, and the videographer is giving his spiel, it is not the court reporter’s job to keep writing what the attorneys are saying to each other.

Bottom line:  Part of being a great court reporter is to be proactive and let the attorneys know they are off the record.

Great court reporters and legal videographers are always ready for the odd things that might happen at depositions.  Sometimes we are in the middle of a hostile environment, and being ready is the key to success.

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2 replies
  1. Rosalie Kramm says:

    Alice,

    Under CA law, and I think it is a best practice, if anyone in the room wants to be on the record, you should stay on. The videographer, as a best practice, should make a formal statement when going off and on the record so everyone in the room knows exactly the status of the record.

  2. Alice says:

    Hi, Rosalie,

    What do you do if it’s been a highly contentious case and one attorney says he wants to go on the record? Does everyone else have to agree to go on as well, or do you start writing? I ask because I just had that happen, where one attorney said he wanted to go on, so I started writing, and the other attorneys didn’t say anything about on or off, but just kept talking, and then later on they were like, are we on or off? And I was on, but the videographer wasn’t on, and it was just a huge mess.

    Obviously, I’m going to start saying “On the record” now when I go on, just to make sure the other counsels know, but if other counsels object to being on the record, do you still go on?

    Thanks,
    Alice (@nerd_for_words on Twitter)

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