Rule 2: Always Remember You Are Making a Record

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 71-80

One of the many unnatural things about being a witness is that often the

most important person in the room is the only one who doesn’t say anything:

the person taking the notes. If it is formal testimony, that person may be a

court reporter (or rather than a person, it may be a tape recorder). If it’s a

less formal interview, there will still be someone taking notes, and everyone

should behave as if that person is a court reporter. Assume that everything—

questions, answers, comments—is being taken down word for word.

As a federal prosecutor involved in organized crime and corruption cases,

I reviewed thousands of pages of transcripts of secretly recorded tapes. These

were either wiretaps, where none of the speakers knew they were being

recorded, or consensual monitoring, where one of the participants, either

an undercover agent or a cooperating witness, was recording the conversa-

tion. Those transcripts provided some important lessons for me in helping

people create more formal transcripts as witnesses.

Keys to Testifying Successfully

First and foremost among the lessons I learned while reviewing transcripts

is how careless we are in normal conversation: how we blur the lines

71

Chapter 15

Rule 2:

Always Remember You

Are Making a Record

Small_PrepWitness_20140403_13-27 Second Pass.indd 71 8/12/14 10:20 AM