We have all been in depositions wherein the noticing attorney gives the witness the admonition to not answer with a nod or shake of the head or with an “uh-huh” or “huh-huh,” because “the reporter can’t take that down.”  Obviously, reporters can write “uh-huh” or “huh-huh” and hear if it’s a negative or positive response.  (Reporters have different ways to spell the positive “uh-huh” or negative “huh-huh” in a transcript.)  If anyone asked me to testify under oath if what I have written in the transcript is a positive or negative answer, I would have no problem testifying what was said, because I write the “uh-huh” and “huh-huh” very differently.”

The difficulty arises when a witness consistently shakes their head or nods their head, and an interpretation by the court reporter has to be made whether the head movement is a positive or negative response.  Reporters will put in a parenthetical, (Witness nods head in affirmative) or (Witness shakes head.)  I believe the court reporter should not be deciding how the witness is answering.  It might seem obvious, but someone could argue later that the witness was just moving their head thinking…  I believe it is up to the attorneys to make their record and tell the witness to answer.

When I was a young reporter, I used to prompt the witness to answer a question when there is just nodding or an “uh-huh.”  I would immediately say, “Answer” after hearing the “uh-huh.”  Then the witness typically would be startled, look at me, and say, “Yes.  Sorry.”  But then one day an attorney scolded me for interfering and having an impact on the record.  “That’s not your job.”  And I believe she was correct.  Our job is to take down the written word and not interpret movements or ask for a “yes” or “no.”

Today if I notice a witness has a tendency to use “uh-huh” or nods/shakes their head for an answer, and the attorneys are not paying attention and allow this to happen, I will ask to go off the record or wait for a break, but advise the attorneys that the witness has a tendency to just nod or say “uh-huh” or nod, and I will ask  “Would you like me to prompt for an answer or leave the record as it is?”  I would say 50 percent of the time the attorneys are grateful to have me step in and help them.  But 50% of the time they tell me that they will take responsibility and to say nothing.

The worst-case scenario is when a witness doesn’t answer or just nods, and then the next question is out before the reporter has a chance to even react or put down an answer symbol.  In that case, I will use my judgment and just paragraph the new question with no answer symbol or parenthetical, nothing.  In my opinion, the attorney needs to pay attention to their record.