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Trial Strategy Practical Tip: Errata Sheets Face Scrutiny

[January 30, 2012]  The Massachusetts Supreme Judicial Court (“SJC”) has established important new guidelines on the use of deposition “errata sheets,” which witnesses use to make corrections to their deposition testimony.  Most significantly, witnesses who make substantive changes to their deposition testimony may be required to justify those changes in a reopened deposition or at trial – and their lawyers may be subject to sanctions, including disqualification, depending on the nature and extent of the changes.  This case is a valuable reminder that witnesses must prepare thoroughly for all depositions.

Factual Background

In Smaland Beach Association, Inc. v. Genova, a number of witnesses, who were deposed, submitted errata sheets containing significant substantive changes, rather than the mere clerical corrections (e.g., dates or spellings) that errata sheets typically include.  In some instances, “yes” responses were changed to “no,” and vice versa.  In addition, substantive deposition answers were replaced entirely or supplemented with lengthy passages containing significant new information.

Many of the changes were so substantive, and so clearly reflected the involvement of the plaintiff’s attorney, that the trial judge granted a motion to make this attorney a witness at trial and, on that basis, disqualified him from continuing to represent the plaintiff.  After the Massachusetts Appeals Court affirmed the disqualification order, the plaintiff appealed to the SJC.

The SJC’s New Guidelines

The SJC reversed the disqualification order and remanded the case to the trial court, on the basis that the judge had not thoroughly evaluated all of the relevant factors.  In doing so, the SJC provided important new guidelines on the use of deposition errata sheets.  Specifically, the SJC announced that:

  • Errata sheets should be used “sparingly” to correct inadvertent errors or omissions, and not as a substitute for providing complete and accurate testimony during the deposition itself;
  • Although witnesses may use errata sheets to correct, supplement or even contradict their deposition testimony, all such changes must be made “in good faith” and must include an adequate description of the reasons for the changes;
  • Witnesses may be questioned at trial as to their reasons for amending their deposition testimony through errata sheets;
  • If an errata sheet reflects “substantive changes as to significant matters,” then the party that took the deposition may be permitted to reopen the deposition to inquire further into those matters;
  • Attorneys representing deponents must (1) explain to their clients that any changes to their deposition transcripts must be made in good faith and not merely out of a desire to strengthen their case, and (2) ensure that the witnesses’ written descriptions of their reasons for the changes “provide an adequate basis from which to assess their legitimacy”; and
  • Attorneys who abuse the use of errata sheets in an effort to bolster their clients’ cases may be subject to sanctions.

Lessons Learned:  Recommendations For Witnesses

In light of the Smaland decision, it is critical for witnesses to prepare as carefully as possible and to testify accurately in their depositions.  Since witnesses who change their deposition testimony may be asked to explain their revisions in a reopened deposition or at trial, witnesses who contradict or substantially change their deposition testimony risk damaging their credibility in the eyes of the jury or judge.  Additionally, egregious violations of the SJC’s guidelines may result in attorney disqualification or other sanctions.

Thus, deposition witnesses should:

  • Prepare thoroughly for the deposition, with counsel, by discussing all areas of likely inquiry, reviewing relevant documents, and practicing sample questions and answers;
  • Listen carefully to all deposition questions and collect their thoughts before answering, in order to ensure that their answers are as accurate as possible;
  • Avoid guessing or speculating.  In many cases, “I don’t know” or “I don’t recall” may be the most appropriate answer; and
  • Use errata sheets as sparingly as possible and provide credible reasons for any changes that may be required.

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Please do not hesitate to contact any member of our litigation team if you have questions about the SJC’s new errata sheet guidelines, or about any other aspect of preparing for and conducting depositions.

Take care –

– Sara