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"On the Record" vs. "Off the Record": Why These Phrases Matter in Court

Posted by James Victor Esh | Jun 13, 2025

I was in court the other day, and one of the attorneys asked the judge to clarify if we were "on the record." I doubt my client really understood why that was such an important question. But in my world of litigation, it's an extremely important distinction. I've had conversations with clients after a hearing where they were concerned about something that was said, not realizing we weren't actually "on the record" at the time. I knew the discussion was "off the record," but it can be hard to explain why that matters so much in a judicial proceeding.
 

So, let's break down what these phrases mean and why they're crucial in a courtroom.


What Does "On the Record" Mean?

Think of "on the record" as everything that officially "counts" in a court proceeding. When something is "on the record," it means:

  • It's being officially documented: A court reporter (a super-speedy typist or stenographer) is capturing every single word spoken. This creates a verbatim transcript of the proceedings. Literally, every "um," "ah," and cough can be there!
  • It can be used later: This transcript becomes the official history of the case. Lawyers, judges, and even higher courts (if there's an appeal) will refer to it to see exactly what was said, what evidence was presented, and what decisions were made.
  • It's generally public: Court records are typically public information. That means most people can usually access these transcripts if they want to.

Why is "on the record" so important?

  • Accuracy and Accountability: It ensures a precise account of what happened, holding everyone accountable for their statements and actions. No "he said, she said" arguments when there's a written record!
  • Appeals: If a case goes to a higher court for review (an appeal), that court relies solely on the "on the record" transcript to review the lower court's decisions. They weren't there, so they need to read exactly what transpired.
  • Clarity: It prevents misunderstandings or misremembering what was said, as there's a written record to refer back to. It's like having a perfect memory for the entire trial.
  • Fairness: It helps ensure that all parties have access to the same information and that decisions are based on the documented facts.

What Does "Off the Record" Mean?

"Off the record" is essentially the opposite of "on the record." When discussions go "off the record," it means:

  • It's not being officially documented: The court reporter usually stops typing, or at least anything said during this time won't be included in the official transcript. It's like pressing the pause button on the official recording.
  • It's not for official use: What's said "off the record" isn't supposed to be considered by the judge or jury when they're making their big decisions about the case.
  • It's usually for practical matters: Lawyers and judges often use "off the record" time to discuss things like scheduling, administrative issues, or try to reach a compromise on minor points without their informal chats becoming part of the official legal record. Think of it as a quick huddle.

Why do courts go "off the record"?

  • Efficiency: It allows for quick, informal discussions about things that aren't directly related to the evidence or core legal arguments, which saves a lot of time.
  • Problem-solving: Sometimes, attorneys can hash out minor disagreements or clarify procedures informally without slowing down the formal process. It's a way to keep things moving smoothly.
  • Less Formal Discussion: It allows for a more relaxed conversation about logistical matters, away from the strict formality of "on the record" proceedings.

Important Note: While "off the record" discussions aren't officially transcribed, they aren't necessarily secret. Other people in the courtroom will still hear what's being said. It just means it won't show up in the formal court transcript that everyone relies on.


The Bottom Line

The distinction between "on the record" and "off the record" is absolutely fundamental to how court proceedings work and how justice is served. "On the record" ensures a complete, accurate, and public account of the legal process, which is vital for accountability, appeals, and overall fairness. "Off the record" provides a necessary space for practical, informal discussions that help keep the wheels of justice turning smoothly without cluttering the official record.

So, the next time you hear these phrases in a legal drama or if you ever find yourself in a courtroom, you'll know they're much more than just legal jargon – they're key to how justice is documented and delivered and common practice everyday and everyday in a "Court of Record".  

About the Author

James Victor Esh

Victor understands the struggles of families.  It is at the core of how he practices.  When a family must be reshaped, he understands the emotional struggle this causes.  He seeks to resolve conflicts in the most efficient way by reaching agreements where they can be made.  When an agreement can'...

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