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Transcripts of cross-examinations: who foots the bill?

Cross-examination on affidavits is the usual course for any litigation, but there is often confusion around the rules for ordering the transcripts, and who pays for what, says Neesons Court Reporting founder and president Kim Neeson.

“The problem is lawyers get bills they shouldn’t, often because they didn’t clarify who is paying at the time of the actual cross-examination with other counsel and the court reporter,” she tells AdvocateDaily.com.

“Since most cross-examinations are paid for by the questioning party, it’s important to discuss with everyone the expectations at the outset.”

Neeson, whose company provides transcription service, court reporting, captioning and a wide range of technological solutions for lawyers, explains that Ontario’s Rules of Civil Procedure sets out the process for transcripts, and cross-examinations held under Rule 39.02(1) have two different payment provisions.

She notes that on motions for summary judgment or a contempt order, every party is responsible to pay for their own copy of the transcript. The cross-examining party will bear the costs of the “original,” and all other parties pay for their copies at second-copy rate. 

On all other motions, the party who orders the transcript must “purchase and serve a copy of the transcript on every adverse party on the motion, free of charge,” according to the Rules. 

Neeson says Rule 39.02(4) is often overlooked by counsel.

“Most assume that if it’s a cross-examination and you’re the party doing the questioning, you’re footing the bill,” she says. “This distinction is important to note, particularly when your client is paying the bill.”

Neeson says videoconferencing of witnesses who are not important on credibility is often used as a good option to reduce costs in litigation, particularly for out-of-town/out-of-country witnesses.  

“We see this most often with experts and non-party witnesses,” she says. “Videoconferencing can often save significant travel fees, travel time and the cost of experts’ time (testifying time, travel time, travel expenses.)”

Neeson says the issues around all affidavit transcripts are important to be clarified.

“On cross-examinations, these transcripts take the place of viva voce evidence before the presiding judge,” she says.

“So it’s important to make sure they are accurate and produced in a timely way, as oftentimes cross-examinations are conducted for motions which are occurring in the very near future."

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