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self-study / Discovery

Nov. 2, 2017

Dealing With Deposition Stipulations

Anyone who has attended a deposition in California has likely heard "the stip" at the conclusion of the proceedings. If the deposition was being taken by an experienced attorney, he or she was probably able to rattle off the stipulation quickly and comfortably, with command of the substance.

This article is intended to help new attorneys, as well as attorneys who are new to taking depositions, get comfortable with and gain command of deposition stipulations. A related aim is to enable those lawyers to project experience and poise whether they are taking or defending a deposition.

More importantly, this article explores what duties and obligations attorneys are stipulating away every day, with an eye to assisting practitioners to truly understand the mechanics of deposition stipulations so they can avoid common pitfalls and mistakes.

Back in the Day

First, it's helpful to understand the origin of the typical deposition stipulation. It's sometimes called the "Southern California Stip." (It tends to be different in Northern California, where it's common for attorneys to stipulate to handle the deposition transcript "per Code.")

Under California's Code of Civil Procedure (CCP), court reporters are "deposition officers," complete with a full set of formal obligations under the law. The code, beginning with section 2025.010, describes all the requirements of a deposition, as well as the specific duties of the court reporter. A few examples of those duties include: retention of the stenographic notes for eight years (CCP § 2025.510(d)); being free of financial conflicts of interest (CCP § 2025.320(a)); and perhaps most importantly, certifying that the testimony was under oath and that the transcript is true and accurate (CCP § 2025.540(a)).

The typical deposition stipulation as we know it came into favor in the late 1970s and was theoretically intended to spare witnesses both the cost of the transcript and the burden of physically travelling to the reporter's office to review and sign it, which was required under older versions of the code. This was particularly important in Los Angeles traffic, where witnesses would be required to spend hours battling the roadways just to sign the transcript--unless the attorneys stipulated to an alternative solution (hence the stipulation's genesis in Southern California).

The common, time-honored deposition stipulation also had other benefits that the rigidity of the code did not allow, such as the opportunity to consult with counsel before making changes or corrections.

The CCP has been updated many times since those thrilling days, and it no longer mandates that the court reporter maintain physical custody of the original transcript. See CCP § 2025.550. However, the "usual stipulation" persists in Southern California out of tradition and habit, and also because it is still a helpful exercise which clearly and cleanly sets forth the plan of the parties to deal with custody of the original transcript.

Modern Protocol

These days, the stipulation is designed to accomplish three main things:

(1) Setting forth a clear agreement regarding custody and transfer of the original transcript, and making sure the court reporter is relieved of any duty he or she may have to maintain custody of it;

(2) Laying out the process for review and signature of the transcript; and

(3) Protecting the party who noticed the deposition, by setting up an agreement that allows the use of the deposition transcript even if it is lost or the witness doesn't sign it.

Let's explore what a typical deposition stipulation looks like:

"I propose we stipulate to relieve the court reporter of his/her duties under the code to maintain custody and control of the original transcript and that the original transcript be sent to counsel for the deponent, who shall retain custody and control of the original, and will agree to make it available upon reasonable request for any purpose.

I further propose the deponent shall have thirty (30) days from counsel's receipt of the transcript to review it and sign it under penalty of perjury. Within the same time period, counsel for the deponent shall advise all parties of all changes or corrections made to the transcript within that time.

Finally, in the event the transcript is not signed under penalty of perjury in the time given, or if the original becomes unavailable for any reason whatsoever, then an unsigned, certified copy shall be usable with the same force and effect as a signed original for any purpose, including at trial."

Bear in mind that this language is obviously subject to some contextual modification, e.g., if the witness does not have an attorney or if for any reason the time frame for review and signature needs to be different.

Moreover, sometimes, per prior agreement, even if the deponent is represented by counsel, the original transcript will be sent directly to the witness for convenience or some other purpose. Who gets the transcript first and how is up to you and opposing counsel.

The stipulation is traditionally offered by the attorney who noticed the deposition, and if the offered terms are appropriate and agreed to, the proper response by attorneys for other parties present is: "So stipulated."

Sounds simple, doesn't it? Well, it is simple. But be careful. Deposition stipulations can be minefields for the uninitiated.

Common Mistakes to Avoid

Here are some of the pitfalls that every attorney should know about.
1.Waiving All Duties Under the Code

Far too many attorneys propose blanket stipulations to "relieve the court reporter of their duties under the Code" without specifying which duties they are referring to. This is a risky move! Such a stipulation could be construed to waive all of the court reporter's obligations, and not just the impractical ones most lawyers intend the stipulation to deal with. In the rare circumstance in which it could become an issue, this could cause significant problems for an unwary stipulator (especially if taken advantage of by opposing counsel).

When reviewing the duties, it's pretty clear which ones attorneys normally don't intend to relieve. CCP 2025.510(c) mandates that the court reporter make the transcript equally available to all parties to purchase (without it, a reporter could refuse to sell a transcript to one of the parties). Similarly, CCP 2025.510(d) requires the reporter to offer partial transcripts (roughs) and expedited transcripts equally to both parties. The aim, obviously, is to prevent the reporter from giving a rush transcript to one party while making the other wait. CCP 2025.510(e) mandates that the reporter keep his/her original stenographic notes (which could otherwise be discarded). Other important duties include the reporter's duty to be impartial and to certify the transcript; it could even be argued that such stipulation waives a reporter's duty to accurately transcribe the proceedings!

Particularly, in light of the close relationships that some firms have with their reporting services--and/or individual reporters--there is potential for bias and abuse when "all duties under the Code" are waived. Citing the exact subsections of CCP 2025 may not be necessary, but any proposed stipulation should be clearly defined and limited. At the very least, it is best practices to be specific and limit the waiver to the reporter's "custodial duties" or the "duty to maintain the original transcript."
2.Forgetting a "Fail to Sign" Provision

Don't get caught on the wrong side of an evidentiary ruling from a stickler judge for trying to use an unsigned deposition excerpt as evidence without the stipulation to fall back on. Not having a provision that charts a clear path to authentication for the passages in the transcript is an invitation for your opponent to engage in obstruction and game playing. Do not allow your adversary to be rewarded for intentionally delaying signing the transcript.

There are provisions in the CCP that offer similar protections; however, be aware that they are generally not as forceful or reliable as having a clear stipulation on the record, on a timeline set and agreed to between the parties. See CCP §2025.520(f). Protect your evidence. There is no reason not to have the authenticity--and therefore admissibility--of your evidence be anything but a slam dunk.
3.Not Setting Clear Time Limits

Avoid the mistake of forgetting to put clear, specific time limits and timelines in your stipulation. If you don't have triggering deadlines on when, for example, an unsigned transcript becomes usable, with the same force and effect as a signed one, that's almost as ineffective as not putting that term in at all. Not including a timeframe on reviewing and signing the transcript allows the opposing party to make changes months and months after the date of the deposition, maybe even after you have cited the unsigned transcript in a motion or brief.

Having clearly defined time limits allows you to take advantage of a disorganized opposition and prevents them from taking advantage of you.

Final Notes and Best Practices

There are a few other things to keep in mind.

When the deponent doesn't have an attorney - like a third-party doctor or percipient witness appearing pursuant to a subpoena - it's helpful to take a couple extra steps to explain the process in detail to the witness and to lay out in detail that the court reporter will mail the original deposition transcript to the witness in a self-addressed, pre-paid envelope for return after review. Below is an example of a helpful modification to the stipulation above, as well as helpful follow-up questions you can use in that instance:

"I propose we stipulate to relieve the court reporter of his/her duties under the code to maintain custody and control of the original transcript. As the deponent is unrepresented by counsel, I propose that the original transcript be sent directly to the witness, Mr./Mrs. [insert witness' name], with a transcript correction form and a self-addressed, stamped return envelope. I propose that Mr./Mrs. [insert witness' name] will have [insert time period] to review that transcript and make any changes or corrections he/she believes are necessary. Please be advised that any changes you do make to the transcript may be commented on at the time of trial.

Finally, in the event the transcript is not signed under penalty of perjury in the time given, or if the original becomes unavailable for any reason whatsoever, then an unsigned, certified copy shall be usable with the same force and effect as a signed original for any purpose, including at trial."

Mr./Mrs. [insert witness' name], do you understand the process of receiving, reviewing, signing and returning the transcript as I laid it out a moment ago?

Mr./Mrs. [insert witness' name], will [state the time period again] be enough time to review and return the transcript?

Do you have any questions?

From both a legal and practical perspective, it is wise to lay the process out very clearly and responsibilities that go along with sending a transcript to the witness. Practically speaking, laying out this information enhances the chance that witnesses will understand what they need to do--and it also enhances the chance that they will actually sign and return transcript. And in the event that does not happen, at least you have, legally speaking, set the stage to satisfy all preconditions for having an unsigned transcript be admissible in future proceedings.

Other Stipulations That Come Up

From time to time, opposing counsel may offer other stipulations. Here are a few examples to be aware of so you aren't caught off guard.

"All objections, except as to the form of the question are reserved until trial."

This is relatively benign and essentially punts objections as to the admissibility of particular testimony until they can be ruled on by the court. Otherwise, get each proposed stipulation clearly on the record and evaluate them one by one.

The "Usual Stipulation"

Don't ever agree to the usual stipulation without being specific and clear on the record about what that means. A common mistake young lawyers make is agreeing to the "usual stipulation" proposed by a more experienced attorney just because they either are embarrassed to admit that they don't know what the specific terms are, or they assume that the terms are unimportant. Don't make this mistake, and don't be afraid to ask questions. It shows professionalism and backbone to make sure you have a complete understanding of what you are agreeing to.

Finally, this shouldn't be a memory test. Don't try to memorize a set of deposition stipulations as if they were lines in a play. If you need to, either print out the stipulations (or at least an outline of points) and slip it behind the back page of your legal pad. Reading the proposed stipulation is perfectly fine. You are better serving your client to read it and get it right than to try to fake it and leave something out.

In short, know what you are stipulating to. Even though deposition stipulations are among the least controversial things you will ever be asked to agree to on the record, they can have ramifications far beyond the deposition itself. Understanding, clarifying, and properly utilizing deposition stipulations is a simple measure that can, and should, protect you as well as your clients.

David Angeloff is an associate with Los Angeles-based law firm McNicholas & McNicholas, LLP. Mr. Angeloff practices in all areas of civil litigation, including personal injury and employment law.


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