Can a Witness Change Deposition Testimony
Given during an Interpreted Deposition?

Yes, It’s Possible to Change Deposition Testimony of a Foreign Witness for Whom English is Not the Native Language, and Legal Translators Can Help

We’ve blogged about deposition interpreting services for translating testimony of foreign witnesses for whom English is not the native language.  We know that legal depositions involving non-English-speaking deponents are an art form all unto themselves. They require a massive amount of preparation, and even then you will invariably be faced with a surprise answer at the interpreted deposition. An interesting question when it comes to depositions, however, is what happens when a witness for whom English is not the native language wants to change his or her deposition testimony, based on a language barrier.

Stated differently, can a non-English speaking witness – giving deposition answers through a deposition interpreter – change his or her testimony after the fact? The answer to that question involves a look at the rules, the policy, and some of the cases that have confronted similar issues of after-the-fact deposition changes.

To Correct or Not to Correct a Deposition Transcript

This article will give a little taste of what is relevant in that discussion. Also, remember that when it comes to any legal issue that involves non-English speaking clients, witnesses, or even other lawyers, the service you should turn to is All Language Alliance, Inc.  We specialize in all types of legal translation services – both oral and written – to ensure that your deposition with a non-English speaker goes without a hitch. Call us at 303-470-9555 to learn about all the ways in which we can solve your foreign-language litigation issues.

Witnesses Changing Their Deposition Answers After the Deposition – Oh, It Happens

Few attorneys would even think of submitting an after-the-fact errata sheet that substantively changes, rewrites, or contradicts answers given during an interpreted deposition under oath. However, it does occur, and the relevant court rules in many jurisdictions allow for such errata sheet changes.

For example, in the Texas case of Texaco, Inc. v. Pursley, the court allowed the defendant to make over 100 changes to his deposition testimony. The court ultimately provided the jury in that case with both the original oral deposition testimony, and the corrected answers. Then, the jury was left to decide the credibility of the witness and which version, if either, should be believed.

In another Texas case, Gilcrease v. Hartford, a doctor gave a set of corrected answers after his sworn deposition. The corrected answers were completely contrary to the answers first given. The doctor stated that he was “very busy,” “worn out,” and “confused” during the deposition as a justification for the corrections. In that case, however, the court refused to allow the corrected answers to go before the jury. The appeals court, however, commented that the trial court should have allowed both sets to go before the jury.

Two Different Approaches to Substantive Deposition Testimony Changes

Federal Rule of Civil Procedure 30(e) is the model for many states’ rules on this issue. Specifically, Rule 30(e) provides that litigants can make “changes in form or substance” with regard to deposition testimony.

Of course, changes in “form” provide very few points of friction in a case. They usually amount to changes to correct misspellings, typos, and errors in transcription. Changes in “substance,” however, create serious litigation issues, and courts have generally taken two divergent approaches to the problem.

In fact, the two cases discussed above are good examples of the two divergent approaches. The first approach, exemplified by the Texaco case, is sometimes referred to as the “broad” or “textual” approach, because it has a broad reading of “substance.” Oftentimes, a broad reading will result in the court providing both original and corrected answers, leaving the credibility determination up to the fact finder.

The second approach, exemplified by the trial’s decision in the Gilcrease case, sometimes referred to as the “policy-based” or “narrow” approach, takes a very strict reading of errata sheets. This approach does not typically allow deposition witnesses to change what they said, what they meant, or what they wished they said.

Alleged Translation Errors Fall Somewhere in the Middle Between “Form” and “Substance”

While lawyers must be prepared for the legal landmines, depending on the jurisdiction, as to whether a court will take the “broad” or “narrow” approach to deposition changes, a non-English speaker wanting to change an answer adds another layer of problems.

A non-English speaking witness asking to change an answer due to a translation misunderstanding is not quite a change in the “form” of the deposition transcript. It is not a misspelling or typo. Yet, it is also not quite a change in the “substance” of a deposition answer, because the witness may not actually be changing an answer. He or she may simply be clarifying the same, consistent answer that just happened to be mistranslated, or was a response to a mistranslated question.

In sum, the problem of a non-English speaker wanting to make a correction under Rule 30(e) or similar state rule analogue, presents a unique problem.

Wohlstein v. Aliezer – Some Helpful Insight

This unique issue was touched upon in the 2010 case of Wohlstein v. Aliezer. In that case, a subcontractor undermined his own case in his response to a question during his deposition. He later provided an errata sheet, stating that he misunderstood the deposing lawyer’s questions because his native language was not English. The trial court initially dismissed the case due to the subcontractor’s “admission,” yet the appeals court – following the “broad” approach – allowed the case to go to trial. Both the original and corrected answers were provided to the fact finder, so it could evaluate the subcontractor’s credibility.

Professional Legal Translation Services for Depos and Beyond

Mistranslations during a deposition can certainly happen, and they can cause problems costing maybe millions of dollars. Given the current state of the law in many jurisdictions, it is also hard to tell which way a court will go regarding the “broad” or “narrow” approaches to after-the-fact changes in testimony.

With all of that risk and uncertainty, it is worth your while to find a reliable legal translation service if your practice in any way involves foreign language speakers or documents in foreign languages. Call All Language Alliance, Inc. at 303-470-9555 to learn more about avoiding translation problems in the first place, and to understand how we can help you sort out deposition translation problems that do arise. While depositions can be an art form, we are here to help the artist do his or her best work.

***This legal translation blog post should not be construed as legal advice. You should always consult an attorney regarding your specific legal needs.***

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