A deposition is “a witness’s out-of-court testimony that is reduced to writing (usually by a court reporter) for later use in court or for discovery purposes.” Black’s Law Dictionary (11th ed. 2019)
“Any party may take the testimony of any party or person by deposition upon oral examination or written questions for the purpose of discovery or for use as evidence in the action.” Ill. Sup. Ct. R. 202
At the end of a deposition, the court reporter will announce, “do you waive signature?” The court reporter is asking if the deponent will certify that everything the court reporter wrote (which originally came out of the deponent’s mouth) is true and correct.
“Um, we’re going to read it, first,” will be the standard answer by the deponent’s attorney.
Really? Has a court reporter ever grossly misconstrued someone’s deposition testimony to the point where corrections need to be made?
Still, it is the deponent’s right to review their testimony for errors.
“Unless signature is waived by the deponent, the officer shall instruct the deponent that if the testimony is transcribed the deponent will be afforded an opportunity to review (but not copy or disseminate) the deposition, without charge for the review, and that corrections based on errors in reporting or transcription which the deponent desires to make will be entered upon the deposition with a statement by the deponent that the reporter erred in reporting or transcribing the answer or answers involved.” Ill. Sup. Ct. R. 207
A deponent who said something regrettable at the deposition might think, “I know what I’ll do. I will just refuse to sign the deposition and the transcript will become hearsay because the court reporter wrote it and the court reporter will not be there to testify.”
“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801 – Definitions, Ill. R. Evid. 801
“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Rule 802 – Hearsay Rule, Ill. R. Evid. 802
A deposition transcript (if a spouse testified) is the admission of a party opponent and therefore an exception to the bar against hearsay…which renders the strategy of not signing a transcript to frustrate the other side pointless.
“The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity” Ill. R. Evid. 801(d)(2)
Even if the deposition is of a third party who is not subject to this hearsay exception, the court will deem the transcript signed after 28 days.
“After the deponent has examined the deposition, the officer shall enter upon it any changes the deponent desires to make, with the reasons the deponent gives for making them. If the deponent does not appear at the place specified in the notice within 28 days after the mailing of the notice, or within the same 28 days make other arrangements for examination of the deposition, or after examining the deposition refuses to sign it, or after it has been made available to the deponent by arrangement it remains unsigned for 28 days, the officer’s certificate shall state the reason for the omission of the signature, including any reason given by the deponent for a refusal to sign. The deposition may then be used as fully as though signed, unless on a motion to suppress under Rule 211(d) the court holds that the reasons given by the deponent for a refusal to sign require rejection of the deposition in whole or in part.” Ill. Sup. Ct. R. 207(a)(3)
Failure to sign the transcript is not a tactic that makes the other side’s case more difficult at trial.
Transcripts unsigned or unfiled can be considered by a court. The transcript must merely exist, be noticed (somehow) and be available.
“[W]here the transcripts were available to the opposing party and the opposing party was present, the trial court’s decision to consider the depositions was allowed.” Payne v. City of Chicago, 16 NE 3d 110 – Ill: Appellate Court, 1st Dist., 3rd Div. 2014
The only way to keep a deposition out of evidence in an Illinois divorce hearing or trial is to file a motion to suppress the transcript.
“Errors and irregularities in the manner in which the testimony is transcribed or the deposition is prepared, signed, certified, sealed, indorsed, transmitted, filed, or otherwise dealt with by the officer are waived unless a motion to suppress the deposition or some part thereof is made with reasonable promptness after the defect is, or with due diligence might have been, ascertained.” Ill. Sup. Ct. R. 211(d)
Court reporters know what they are doing. They will swear the deponent to testify truthfully and accurately take the deponent’s testimony. It will be very difficult to convince a judge that they did otherwise.
“If the testimony is transcribed, the officer shall certify within the deposition transcript that the deponent was duly sworn by the officer him and that the deposition is a true record of the testimony given by the deponent. A deposition so certified requires no further proof of authenticity.” Illinois Supreme Court Rule 207(b)
Depositions are supposed to make a divorce case clearer not more complicated. Sign the transcript and move on with your life. Do not accept another party’s refusal to sign the transcript as any kind of equivocation…they said what they said.
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