There are two types of testimony that are admissible during trial in Texas courts: live testimony and deposition testimony.
Live testimony is what everyone’s used to seeing—a witness is physically present in the courtroom, goes to the witness stand, is sworn in, and answers questions under oath in front of the judge and jury.
Deposition testimony, on the other hand, is obtained before trial. Depositions are usually taken in the office of an attorney or court reporter, in the presence of a certified court reporter and sometimes a videographer. The court reporter is legally authorized to swear in witnesses and to make a word-for-word transcription of everything that’s said during a deposition.
If a witness who was previously deposed testifies live at trial in a manner that’s inconsistent with the deposition testimony, the opposing attorney can point out the discrepancy by reading the deposition transcript. This is called impeaching the witness, which means suggesting to the jury that the witness isn’t credible or honest.
When the court reporter releases the final deposition transcript, a correction or errata sheet is also provided. Texas law allows the witness 20 days to “read and sign” the deposition transcript, which includes making any corrections. When corrections are timely returned to the court reporter, they become a part of the official record.
There’s an important caveat to keep in mind when making changes or corrections to deposition testimony. Texas law allows both the original testimony and the changed testimony to be read (or, if the deposition was video recorded, played) to the jury.
In my opinion, there are very few corrections or clarifications that witnesses should make to a deposition transcript. To do otherwise runs the risk that the opposing attorney could ask the witness tough questions at trial about the truthfulness and reliability of the testimony, basically attacking the honesty and candor of the witness in front of the jury.
I always ask my witnesses to review the deposition transcript carefully and to make a list of any issues they see with the transcript.
If there are important transcription errors by the court reporter that are material to the case, they should be noted on the errata/correction form.
If the witness misspoke, was unclear, or made an honest mistake after misunderstanding the question, if the issue is material to the case, it should be corrected or clarified.
On the other hand, if the witness simply decides that he or she said something that’s not good for the case and wants to fix the testimony, it’s wise to leave it alone. Juries like straight-forward witnesses that are honest and don’t appear to be playing games. If there’s an issue that needs explanation, I think it’s preferable for witnesses to prepare to explain themselves on the witness stand, rather than “make a 180” degree turn on a deposition errata sheet.
