Errata Sheets-Changing Testimony

Changing Substantive Testimony in Deposition Errata Sheets

As trial lawyers we have all heard or have even said to the witness at the conclusion of a deposition that she has the right to read the deposition transcript to make sure that her testimony was accurately transcribed by the court reporter. The statement was probably followed by advising the witness that she may not change her answers, but may only correct any typographical errors or statements incorrectly transcribed. The case of Motel Six, Inc. v. Dowling, 17 F.L.W. D.725 (Fla. 1st DCA March, 11, 1992), specifically held that a witness has the right to make substantive changes to deposition testimony in the errata sheets. Contrary to what trial lawyers have been advising witnesses for years, the First District Court of Appeal ruled that errata sheets to a deposition are admissible even though they contain substantive changes to the deponent’s testimony. Id. In that particular case, the witness was deposed, did not waive reading and signing of the deposition and about two weeks before the trial, the witness changed several substantive answers to his deposition. Id. The deposition of the witness was read during trial, including the substantive changes made in the errata sheets. The defense attorney objected to the reading of the changes in the errata sheets, but the trial court overruled the defendant’s hearsay objection and allowed the errata sheets to be read to the jury. Id. The First District Court of Appeal affirmed the trial court’s ruling and held that the errata sheets were admissible. Id. The appellate court advised that if the party opposing the errata sheets wanted to cross-examine the witness regarding the changes to the testimony, that the trial lawyer opposing the errata sheets had the obligation to reopen the deposition and cross-examine the deponent regarding the changes made. Id. The court stated that “the burden is on the party objecting to the changes to challenge the weight and credibility of the changes. Nevertheless, the changes will be admissible.” Id. From now on, trial lawyers should advise all deponents that they have the right to read the deposition once transcribed, and make substantive changes to the deposition testimony by making those changes in the errata sheets. The witness will need to explain why the changes were made in the errata sheets. See, Rule 1.310(e) Fla.R.Civ.Pro. If the opposing party wants to challenge the changes, the opposing party should immediately set the deposition of the deponent to question why the changes were made. Pursuant to Rule 1.310(e), Fla.R.Civ.Pro. Witness Review, it appears that witnesses have always had the right to change deposition answers even if the changes were substantive. The Rule specifically states that: “[i]f the testimony is transcribed, the transcript shall be furnished to the witness for examination and shall be read to or by him unless examination and reading are waived by the witness and by the parties. Any changes in form or substance that the witness wants to make shall be listed in writing by the officer with a statement of the reasons given by the witness for making the changes. The changes shall be attached to the transcript. . . .” [Emphasis Added] Id. Trial lawyers must properly advise their clients and friendly witnesses that they have the right to change their deposition testimony after they have had an opportunity to read the deposition transcript. On the other hand, an attorney should request that the court reporter immediately advise all parties of any changes made by a deponent to the deposition testimony. If substantive changes were made, the opposing trial attorney should immediately request that the deposition be reopened so that the deponent may be questioned regarding the changes made.