Facilitated by: Hon. W. Kent Hamlin, Judge of the Fresno Superior Court

and Lesia Mervin, CSR, RMR, CRR, FAPR,

Official Reporter for the Tulare Superior Court

What Is With This Judge?   Takes the bench whenever he feels like it and

seems to expect I’ll be there when he does.

  Doesn’t seem to care about me, my family or my profession at all.

  Won’t discuss with me why reporters hours have been cut or why some are being laid off and furloughed.

What Is With This Judge?   Doesn’t control the lawyers, parties and

witnesses at all – let’s them talk among themselves, interrupt, mumble.

  Takes my work for granted and expects me to be perfect all the time.

  Won’t step up and advocate for me or my profession with administrators, the legislature or the public.

What Is With This Judge?   Does this guy ever take a break?   Does he ever shut up?   Is he hitting on me?   When she goes past 5:00 or into the noon hour,

does she just assume I don’t have a life outside of court?

  She’s staring at my Realtime – doesn’t she know it’s just a draft?

What Is With This Judge?

  Hey Judge, do you think you could talk a little faster?!?!?!?

What Is With This Reporter?   Expects me to chase him down when I’m ready

for court and set my schedule around his needs.

  Thinks I don’t care about him, his family, or his profession.

  Wants to discuss conditions of court reporters’ employment during contract negotiations.

What Is With This Reporter?   Can’t keep up and asks me, the witnesses and

the lawyers to slow down or repeat themselves.

  Takes my work for granted and expects me to be perfect all the time.

  Expects me to advocate for court reporters when I’m dealing with difficult litigants and administrators.

  Complains about not making enough money, but whines about all the transcripts that are due.

Why Relationships Matter

  If a judge does not see you as an equal, as a professional who deserves and has earned his support, you won’t get it.

  If a judge does not trust her reporter to support and defend her, she will not support and defend the reporter.

  If the judge doesn’t respect the reporter as a person, he won’t take risks for him.

But Good Relationships With Judges Are No Longer Enough

The days when the support of judges was all that was needed are behind us:

 They lack the power and influence they had when counties funded the courts.

 Legislators no longer respect judges as they once did – very few are lawyers.

 Legislators make decisions based on how they will affect their next election.

Reporters Are Under Attack!

  The assault on court reporters – why reporters must remain vigilant and be prepared to fight for their profession.

  What we can do to educate judges, legislators, attorneys and the public.

  What are the important points to stress when addressing an uninformed public?

Justin Bieber Deposition – Vulgar Attack on Court Reporter https://www.youtube.com/watch?v=o-zEJ9SxZG4

Could he possibly have seen the reporter as a human being, trying to make a living, a professional worthy of his respect and deference?

Or did he just see her as an easy target for his wrath, the only person in the room whom he could disrespect without consequence or concern for how she might react? Is there anything we can do to address that?

For more than six years, court reporter Jurtiana Jeon arrived at work mostly without incident, setting up a small, portable desk beneath the judge’s bench before transcribing the day’s proceedings on her computer. But matters took an unexpected turn Jan. 12 in D.C. Superior Court’s Courtroom 48. Jeon watched in fear as a man became irate during a hearing and lunged at her. She was beaten as she lay in a fetal position, arms covering her face. She called for help, she later said, as the judge, courtroom clerk and the man’s attorney fled the room. “I was screaming bloody murder at the top of my lungs hoping someone would come to my aid,” Jeon, 31, recently told a judge.

The Real Attack: Why don’t we just replace these overpaid court employees with a digital recording device?

AB 803 (Wagner, R – Irvine): This bill died in the Assembly Judiciary Committee in April 2011. The bill would have required the Judicial Council to "implement" electronic recording in 20 percent of all superior courtrooms currently not utilizing that technology by July 1, 2012, and continue "implementing" that technology in additional courtrooms at a rate of 20 percent each year thereafter.

The Real Attack: Why don’t we just replace these overpaid court employees with a digital recording device?

AB 251 (Wagner, R – Irvine): This bill died in the Assembly Judiciary Committee in April 2013. The bill would have permitted electronic recording in family law cases “only in the absence of a court reporter.”

Assemblymember Wagner concluded,

“Electronic court reporting is a solution to multiple problems; a solution that some of my colleagues are unwilling to accept due to deference to public employees and labor unions.”

Is Assemblyman Don Wagner motivated by a desire to eliminate the jobs of hard-working professionals?

Or does he simply believe the supposed “experts” who contend that court reporters are easily replaced by digital recording devices?

The Legislative Analyst’s Office gave credence to this mistaken belief with its report in 2011, and you can expect that report will be trotted out every time a bill proposes to limit or eliminate court reporting:

http://www.lao.ca.gov/reports/2011/bud/budget_overview/budget_overview_011211.pdf

Regarding the Governor’s proposed budget in 2011-2012, the LAO explained that the Governor was seeking $200 million in savings for the courts, but that the administration had not identified how these cost savings would be achieved.

The report went on to state that the Legislature should “work with the courts” to determine what specific actions are needed to achieve “these, and potentially even greater, savings, in a way that minimizes the impacts on access to the courts. For example, the Legislature could direct the trial courts to implement electronic court reporting…”

Here are the kinds of statements regularly made by those who mistakenly believe court reporters are easily replaced by digital recording:

“Strong evidence and real court experience” demonstrates that electronic recordings are cheaper and more reliable than trained stenographers and that “now is the time to switch to electronic recording in every California courtroom.”

(Fresno Bee, Feb. 3, 2013.)

"It's time to end the debate and make the switch to digital recording.” (Fresno Bee, April 28, 2011.)

“[W]e recommend the Legislature direct the trial courts to implement electronic court reporting in California courtrooms…we propose that 20% of the state’s courtrooms be switched to electronic reporting each year until the phase-in is complete….Upon full implementation, the estimated savings could exceed $100 million on an annual basis.” (Legislative Analyst’s Report, “Making Targeted Reductions to the Judicial Branch,” Jan. 24, 2011.)

What motivates this animus toward reporters?

Jealousy: How could a reporter possibly be paid more than an attorney or, in the rare case, more than the judge? Why are court reporters paid so much more than courtroom clerks and other court employees?

 Long hours, weekends, holidays, uncertain vacation schedules, readbacks even when sick or on vacation.  Extraordinary skill, obtained through years of study and practice, and proven through performance under pressure and rigorous testing/performance standards.  Ongoing expenses to update and maintain writers, hardware, software, and printers; cost of supplies.

What motivates this animus toward reporters?

Those doggone trade unions: How can they justify passing laws that prohibit electronic/digital recording of proceedings, leaving the courts without a record?

 Can you say self-preservation? Without these provisions, each court could make its own rules about when to use electronic recording.  Reporters are not to blame for draconian cuts to the judiciary, the budget crisis in individual courts that has prompted those courts to layoff and cut hours of court reporters, or fiscal decisions made by judges and administrators that have left courts without a record.

Is the attack really a result of animus toward reporters?

Ignorance: Perhaps judges, attorneys and legislators don’t really dislike reporters – they just don’t care enough to be informed and take an active role in supporting them.

 Most believe they are a lot more important than a court reporter – they make things happen, you just report it!  They have their own battles to fight and the uninformed public to satisfy – why waste political capital on you?  Many know so little about what really goes on in a courtroom that they don’t see the exceptional value a reporter provides in obtaining and preserving an accurate record of the proceedings.

What can I do to protect myself and my profession?

Educate (and placate) judges: Like it or not, you need the support of trial court judges if you are to win this war.  Start with judges you know are sympathetic to your plight – explain the crisis and ask for their help.  Don’t expect that justices of the courts of appeals or Supreme Court will get it – many have hardly been in a courtroom, presided over an important trial, or formed any kind of relationship with a court reporter.  Do the little things that will gain the respect of judges – be on time, leave personal problems at home, don’t gossip, be unobtrusive and respectful, treat others well.

What can I do to protect myself and my profession?

Educate legislators: These are the folks who can pass laws that damage your profession. They matter most.

 Call your local Assemblymember or State Senator and set an appointment to meet with them.  Contact those who author damaging bills or who make uninformed public statements and set them straight.  Keep your eyes and ears open – check regularly for bills affecting reporters, have a presence at the Capitol so you can see bills and amendments coming in time to take action before it is too late (beware of “trailer bills”).

What can I do to protect myself and my profession?

Educate attorneys: They should know how important court reporters are and speak to their professionalism.

 They have a financial interest in having the court provide a reporter, rather than having to pay for one themselves or passing that expense on to their client.  They know how good your work product is –they depend upon it every day.  The next time you expedite a transcript or rearrange your schedule to accommodate their needs, let them know they can return the courtesy by supporting you, by speaking with lawyers and judges on your behalf.

What can I do to protect myself and my profession?

Educate the public: Public employees are not held in the highest esteem, so they must see you as indispensable.

 Why wouldn’t a recording be cheaper and more accurate than a court reporter?  Why should I care if the court has an accurate record of the proceedings in any event?  Why should I care about this person who makes more money than me and has a better retirement plan?  Can’t we just let judges and lawyers decide what’s best for the profession and trust they’ll do the right thing?

What do I say or write about in defense of court reporters?

 Cost savings are illusory  The record is what matters – no one does it better  Once lost, the record can never be reconstructed  Recordings have proven to be unreliable  Trial courts are uniquely unsuited to electronic recording  Realtime helps judges do their jobs better  You can’t play a recording for a jury that wants readback  Court reporter fees help to fund the courts and their licensing fees help fund transcripts for indigent parties

Cost savings are illusory:

 State of the art recording equipment is expensive

 Equipment requires monitoring and maintenance

 Transcribing a recording is difficult and expensive

The record is what matters – no one does it better:

 Reporters are trained and have the experience to sort out the jumble of speech which is the norm in a trial court  A transcriptionist cannot have witnesses, lawyers and judges repeat themselves to clarify the record (too late)  “Unintelligible” does not exist in a court reporter’s world  The title is Certified Shorthand Reporter for a reason  Will we certify “transcriptionists” for accuracy? If not, where is the assurance of accuracy? If so, how will that scheme save money vs. CSR’s? How does one “certify” as accurate a transcript replete with the word “unintelligible”?

Recordings have proven to be unreliable and once lost, the record can never be reconstructed:

State of Missouri v. Arnold Stephen Barber (2012) Case No. WD74279 (Ct. of Appeals, Western Dist. Mo.):

This court simply cannot conduct meaningful appellate review of Barber’s claims on appeal without the ability to review the relevant portions of trial testimony of the very individual accused of criminal wrongdoing by the State. We are mindful that the State’s attorney is not at fault for the mistake occurring when someone fails to press the “record” button on the recording equipment at trial. It is, however, the State that seeks to take Barber’s freedom from him….Barber has, accordingly, demonstrated prejudice requiring a new trial.

Recordings have proven to be unreliable and once lost, the record can never be reconstructed:

 Egger v. Soltesz (2012) 2012-Ohio-3182 [recording of guardianship hearing could not be produced]

 Harper v. Kentucky (2012) 371 S.W.3d763 [recording equipment failed to record any audio of three-day trial]

 Louisiana v. Higginbotham (2012, La. Ct. of Appeals, 2nd Cir.) No. 46,975-KA [equipment failed to record testimony of two witnesses]

 Povoski v. Fischer (2012, NY Slip Op 32717(U)) Docket No. 3599-11 [hearing tape had “numerous and lengthy” gaps]

Trial courts are uniquely unsuited to electronic recording:

 Speakers do not routinely identify themselves, leaving a transcriptionist unable to correctly identify them  Witnesses (especially children) do not speak up  Accents, slang and poor diction make much testimony unintelligible, and witnesses and attorneys cannot later be asked to clarify or restate  Witnesses, attorneys and judges talk over one another  Extraneous noises in the courtroom create interference

Realtime helps judges do their jobs better:

 Those with verbal language processing difficulties can benefit from reading the testimony as it is transcribed  A judge can work on other matters during trial, knowing that if she needs to review a question, answer or objection, she can go to the Realtime transcript  Alerts the judge to any difference between the transcript and what he heard, so he can then seek clarification  Gives judges the ability to review earlier testimony or rulings without having to request a formal transcript  Allows judge to make more precise rulings on objections and motions to strike testimony

You can’t play a recording for a jury that wants a readback of trial testimony:

 There is no time to transcribe recorded testimony – a skilled CSR can read within minutes of the request  If you play the recording, will you review it first to ensure the speakers can even be heard?  If jurors disagree on what they hear on the recording, how would you even know that or attempt to resolve it?  You cannot play stricken testimony, arguments on objections, privileged communications between counsel and client, or sidebar conversations captured on audio

Reporter fees help fund the courts and CSR licensing fees help fund transcripts for indigent parties:

 Court reporters bring in $40 million a year in fees that directly fund the courts  Reporter licensing fees also fund transcripts for indigent clients  Hardworking reporters pay taxes to the state and federal government

You need the support of judges, lawyers, legislators and the public if you are going to fight off this assault. All of them are important in this effort.

But these folks will not fight this battle for you – they have their own concerns. It is your job to find ways to educate and motivate these stakeholders if you are going to protect your profession and your livelihood, and each of you must do your part in this fight.

The administration of justice demands it.