§80.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§80.8 STRATEGIC AND PROCEDURAL CONSIDERATIONS

In all court proceedings, it is important to be cognizant of how the record will be made and its potential use in subsequent proceedings. In addition, in circumstances when electronic recording is used, additional considerations and "best practices" must be considered.

(1)Obtaining a copy of the transcript

When using a court reporter, provide as much notice as possible regarding the portions of the transcript that are needed, as well as applicable deadlines. Either make payment arrangements in advance or, if you have obtained an order of indigency, provide a copy of the order to the court reporter.

When using electronic recording, check with the courtroom clerk or clerk's office to obtain a copy of the recording. A court-approved transcriptionist may be required for an official record of the proceedings. See RAP 9.2(a); King County LCR 80(d)(4). A list of court-approved transcriptionists should be available from either the court clerk or court administrator. Payment arrangements must be made directly with the transcriptionist.

A written transcript may not be needed for some types of proceedings. For example, in King County the judge will simply listen to or view the recording of the hearing when hearing a motion for revision of a commissioner's ruling. Always be sure to determine if a transcript will be required in sufficient time before the proceeding at which the testimony will be used.

(2) Practice tips for making a record when a court reporter is used

The following tips, many of which are adapted from National Court Reporters Association, Making the Record (rev. May 2010), available at http://www.ncra.org/files/Events/CRCWeek/MakingtheRecord_web . polf, apply both to testimony in court and at depositions. Whenever prior testimony is used in lieu of live testimony (such as a perpetuation deposition or impeachment), its value is significantly diminished if the questions and answers are not clear.

(1)Spell out proper names slowly and clearly.

(2)Remind witnesses to wait until the question is asked before responding. If an attorney objects, the witness should respond only when instructed by the court in trial or recorded proceedings.

(3)When using acronyms, use an identifying word to clarify, e.g., "B as in Boy" or "R as in Roger." If the acronym is not commonly known, be sure to state the full name when the acronym is first used.

(4)When referring to an exhibit, always refer to the exhibit number. It also is advisable to repeat occasionally the exhibit number and the name of the exhibit.

(5)Ensure that witnesses respond audibly, not with a nod of the head or an "Uh-huh." If there is ambiguity, clarify for the record: "Is that a 'yes' or a 'no?'"

(6)In-court identification:

Q: Do you see in the courtroom the man who hit you?

A: Yes.

Q: Can you identify him by describing an article of clothing that he is wearing?

A: He is wearing a purple shirt.

Let the record reflect that the witness has identified the defendant.

(7)Description:

Q: How far away from the defendant were you standing?

A: From where I'm sitting to about the end of the jury box.

Q. Let the record show that the witness is indicating a distance of about nine feet.

or

Would you agree that the distance is about nine feet?

(8) Court reporters, like other sighted individuals, rely in part on the witness's facial expressions and lip movements to interpret speech. If a witness is asked to step away from the witness stand, e.g., for the purposes of making a diagram, make sure that the witness's face is visible to the court reporter (and the fact finder(s)) and is not obscured by the easel or monitor. When in doubt, ask the court reporter if she or he was able to hear the answer.

(3) Practice tips for making an electronic record

The following guidelines will help to ensure an accurate record in proceedings recorded electronically. Remind clients, witnesses, and interpreters of the importance of these tips for capturing a complete and accurate record.

(1)Make note if your assigned court is using recording equipment before the start of court. Familiarize yourself with the manner of recording and ask the clerk or person responsible for recording for helpful suggestions in obtaining a...