Creating the most accurate legal record
Undertaking. Advisement. Refusal. These are three oh-so-simple words that lawyers expect to see plainly laid out in their discovery or cross-examination transcripts. But when counsel don’t make it obvious, omissions or mistakes can easily be made.
Let’s look at a few things that can confuse the matter.
Example 1: There are back-and-forth exchanges over numerous pages of transcript where undertakings, refusals or advisements are given. Suddenly counsel starts saying “same as before” or “I’ll take the same position as I did last time.” Or just simply use the word “same.” Huh? Do you even remember what that was? Because wouldn’t it be simpler to say “I’ll undertake to…” or “advisement” or “that’s refused” and be clear? This is where the slippery slope to guessing on the part of the court reporter begins.
Example 2: No acknowledgement at all. Many times I’ve heard a question posed, such as “Will you undertake to…” and then no response. Is that an undertaking? Do I assume it’s an undertaking? Should I, as the reporter, interrupt to ask if it’s an undertaking? Sometimes I’ve thought there is no response on purpose. Again, the court reporter does not want to be put in the position of having to make your undertaking for you, and most likely will not mark it at all in the transcript.
Example 3: A request is asked for, and then an answer comes from counsel such as, “Well, I don’t know if we have such but if we do, we’ll have a look at it and see where we go from there.” Okay, what is that? Is that an advisement? Is that a quasi-undertaking? Honestly, even after 35 years of reporting I’m unsure.
As a result of these uncertainties that appear quite often during the preparation of a transcript, Neesons puts a disclaimer on their Index to Undertakings, Advisements and Refusals that says:
The following list of undertakings, advisements and refusals is meant as a guide only for the assistance of counsel and no other purpose.
The best advice for counsel I can proffer is:
- If you are asking for an undertaking, make sure you are given a proper verbal response and don’t move on to the next question before you are sure.
- If you are giving the undertaking, advisement or refusal, say so. Be clear.
It’s your record — create the most accurate one you can in conjunction with your court reporter.