By: Richard A. Cook, Esq. (Guest Blogger)
Let’s face it, most paralegals are fairly well-versed in the world of depositions, depo prep, and errata sheets. After all, we do sometimes help to prepare our clients for their depositions (or help to prepare our attorneys to do so), and send the original transcripts out to clients for review and signature, but on occasion, it’s good to have a basic, crash refresher to remind us why these key components of litigation are so important and how they are best handled.
I can’t tell you how many times I’ve received a call from a client wanting to know “if I should change this answer?” when reviewing their deposition. It’s for that reason we’re presenting Part II of our “Deposition Series,” written by an experienced, senior-level attorney. We hope you enjoy it, TPS readers! Part II of your crash course on depos begins right now…
So you have carefully prepared the client for deposition, you have scoured his discovery responses and medical records for any problems, contradictions, omissions and the deposition of your client is over, now what? Upon receipt of the deposition, you, your paralegal and the client need to carefully review the transcript for any discrepancies or inaccuracies. You may have noticed these problems at the time of deposition or later while reading it. Your client has one last chance to correct the errors and explain why he answered incorrectly at the deposition.
Under Rule 30 of the Federal Rules of Civil Procedure, your client has a right to check and correct any errors in the deposition. I never waive signature on a client’s deposition, or that of an opposing witness, except experts. This is your client’s last opportunity to correct any problems. You are able to correct any errors or even misstatements. In addition, court reporters do make mistakes. As a result, you do not want to give up this valuable right. Clients are not computers, they are human beings and can make mistakes.
The rule allows your client to correct those mistakes. You have thirty (30) days from the date the deposition is delivered to you to make these changes. If you fail to act the opposing party can ask that the deposition be submitted “as is.” If you fail to make any changes needed, the deposition will bind your client, and you will be unable to undo the harm. I always try to make sure clients use this right sparingly, and make corrections only when necessary. Nothing is worse than to send pages of corrections. It will seem to a jury as if you are trying to rewrite your testimony.
A couple of caveats… any changes can be used for purposes of impeachment when of trial or in some later proceeding. The jury or finder of fact can consider both answers and make their own decision which is more credible. In submitting an errata sheet, a client must timely exercising their rights under Rule 30(e) of the Federal Rules of Civil Procedure, which allows a deponent thirty (30) days to check the deposition transcript and to make any changes as to “form or substance.”
The deponent may exercise this privilege by signing a statement under oath reciting the changes and his reasons for making them. If the deponent exercises this right properly, both the original answers and the revised answers and the accompanying explanations become part of the record. See Podell v. Citicorp Diners Club, Inc., 112 F.3d 98, 103 (2d Cir.1997); Lugtig v. Thomas, 89 F.R.D. 639, 641-42 (N.D.Ill.1981). The reasons given “need not be convincing,” but “there must be a reason for every change.” Id.; see also Sanford v. CBS, Inc., 594 F.Supp. 713, 715 (N.D.Ill.1984) (“It is not enough for the witness to give general conclusory reasons for all the changes at the end of the transcript or, as in this case, for the witness to record no reasons at all upon the deposition but merely claim later the reasons are ‘either explicit or reasonably implied from the circumstances.’ ”) The Seventh Circuit has held that “a party cannot create a sham issue of fact by ‘directly contradict[ing] her own earlier statements, without explaining the contradiction or attempting to resolve the disparity.’ ” Holland v. Jefferson National Life Ins. Co., 883 F.2d 1307, 1314 n. 3 (7th Cir.1989), quoting Babrocky v. Jewel Food Co., 773 F.2d 857, 861 (7th Cir.1985).
If your client completely reverses his answer you need to clearly and persuasively explain the reason for the change. Under most state and federal law, two contradictory statements about a material matter made under oath on the face of it, is an act of perjury. 18 U.S.C. § § 1621 and 1623. Perjury requires that one make the false statement with knowledge of its falsity and show that it was not made as a result of inadvertence, honest mistake, carelessness, misunderstanding, or a mistaken conclusion. As a result, you want to make sure the change is truly a mistake and that the client has real reasons to justify the correction. Otherwise, you risk aiding and abetting a crime which is immoral, unethical and illegal. 18 U.S.C. § 1622 – subornation of perjury.
After all is said and done, make sure that your client understands that the number one rule is to tell the truth and be accurate. As momma always said, “honestly is the best policy,” and the surest way to protect your client and their case.
Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, he served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Indiana Prosecutor’s Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector’s Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney’s office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook Shartzer & Tisch in Indianapolis. Richard is also a member of the ITLA and the ABA.
We’re impressed that an attorney is willing to take the time out of his busy schedule to share some knowledge and insights with us, here at The Paralegal Society — aren’t you? We’d like to extend a special thank you to Rich for sharing the “Deposition Series” with us.
We’ll see you next time, TPS readers!!