There are those who say that whenever you make remarks at an event like this – or you are invited to speak at a religious event – you must start with some humor. Well, we all know there are lots of lawyer jokes out there, but for the life of me I cannot think of any court reporter jokes. Of course, that is not to say that court reporters lack a sense of humor – and one example sticks in my mind vividly:
Years ago, I was defending a malpractice case – not a very good one for the plaintiff. The opposing expert didn’t have much of a clinical practice. He worked a half a day per week at a military health clinic. But, he did lots of expert work. He didn’t have an office, obviously, so the depositions were done at his house. I can’t say I thought much of him as a doctor. However, he was very hospitable. He would offer coffee and soft drinks and there were always snacks on the dining room table where we all assembled. Very nice man. The doctor was also a cat lover. The cats wandered about – as cats will do. Now, I am not a big cat fan, but they don’t really bother me either. As the deposition progressed, I could tell my opposing counsel was getting increasingly irritated by the cats. The cats, probably sensing this irritation, paid him increasingly more attention, including finally climbing into his lap. The court reporter’s transcript, however, told the story best:
Q: Why do you say that doctor?
Plaintiff’s Counsel: Get this Goddamned cat off me. [cat flung, agitated cat noises]
A: What was your question, Mr. Rawls?
Too bad there wasn’t a video - the cat flew in an arc away from the table screeching horrendously...
When I was a young lawyer practicing in the very wild coal fields of southwest Virginia, one of the wise old lawyers gave me important advice: Making your opposing counsel unhappy probably means you are doing your job. Making a judge mad or unhappy is sometimes unavoidable. But NEVER ever make a court reporter mad.
Such well-founded wisdom. As trial lawyers we live by the record we create or preserve and when it comes to the testimony of witnesses, your court reporter is that record. No matter how good – or bad as the case may be – the testimony of a witness is, if the transcript is not right.... Well, Houston, we have a problem.
When Mary Ann asked me to speak to you today, I accepted because I feel it's important for me to deliver a message to you. My first message may seem like stating the obvious, but sometimes we need to do that: What you do is VERY important to the whole justice process. And I don’t use the term justice facetiously or ironically. While litigation is indeed an adversarial process it is still about justice, righting wrongs. Settling disputes. When I stop thinking, that will be time for me to retire.
The legal world has changed dramatically in the 35 years I have been practicing. There actually was a time before cell phones and emails. There are even some of us who recall when fax machines were cutting edge and only big firms had them. Not surprisingly, your field, court reporting, has gone through huge changes, both in terms of technology and business models. Change is good, right? Get with it. Embrace the technological revolution. Efficiency matters. All this is good stuff, right? The answer is not an unqualified affirmation. Far from it. So called advances have a cost – sometimes a huge one – and your business is a classic example. Change is for the better when it is positive – a “win win” to use that hackneyed phrase. And I am not at all sure that is what we are seeing in your world.
I believe you are ALL stenographers here today, and I am here to tell you that in MY world, you are the gold standard for accurately transcribing testimony. I've had experiences with other so-called forms of making the record, and by recording in particular, and let me say that every time I take a deposition, I want a real stenographer – one of you guys - beside me recording all the words. I want you there because those words are IMPORTANT and the record created by those words is IMPORTANT. It matters, a lot. How words are said, down to the punctuation, is IMPORTANT, and I trust stenographers to get it right.
Why do I say this? I am 64 and therefore a curmudgeon by definition - I like things the way I like them. But there is actually a completely rational basis for my court reporter preference. A stenographer is trained. Let me say that again: TRAINING matters - hugely. Training combined with experience matters – hugely. Training and experience produces professionals who are not only skilled, they possess the necessary judgment to perform a task which is absolutely critical in our legal system.
When you look at other forms of court reporting – all of which in some form or another are recording driven – the level of training is just not the same. It’s not close. I have observed some instances where it is clearly almost non-existent. There is a simple test that will show this: You ask a question; an objection is made. I look at the court reporter and ask: “Would you please read back the question?” Everyone in this room could do that in seconds, literally. With non-stenographers, I have seen minutes of fumbling (and often blank looks). Not even worth the effort to ask.
The problem is bigger than the genuine annoyance of not being able to get a question read back. As a lawyer it is particularly distressing to get a transcript and get the unsettling sense that it is just not accurate. And the problem is compounded immensely because I can’t PROVE it is wrong. Even defending a deposition, my notes can’t do much for me and if I am the one taking it that is an even worse position. Have I seen this with “recorders” as I call them.? Yes, frequently. Sometimes it is just annoying – you can figure out the substance despite the clearly wrong words and screwy punctuation – but sometimes it is far beyond simple irritation. It’s substantive – that’s a big deal.
We can all agree that an accurate record matters. And the simple reality is that in my observation and experience if you don’t have a “real” court reporter – that is a stenographer – then the odds are much higher that your record is not likely to be as accurate.
As a trial lawyer, it is critical to me that all the words that I speak and all the words the witness speaks make it into the transcript, and that those words are spelled correctly and punctuated correctly so that I can read that transcript and it's like I was there ... because I WAS!
When a STENOGRAPHER is sitting in the chair next to me and the witness, the reporter's job is more than writing words. The reporter will insist upon an orderly deposition. They'll make sure that the witness doesn't interrupt me, and they'll keep tabs on me to make sure I'm not doing it either. Good stenographers I've worked with in the past know that interrupting causes us to lose our train of thought, and they'll make a notation to check spellings of a word at the end of the day. They will exercise judgment. I respect that. I appreciate that. I need that.
I think an accurate record matters - who can really argue that point - but let me play Devil’s Advocate here: If we can use technology – think Dragon Speak – and because of that technology we can avoid hiring someone with expensive training – meaning some “kid” could be used, shouldn’t that lower the cost? Sure, the product might not be as good, but one can live with lower quality service or product - if the price is much lower. We’ve seen examples of this in other areas. For those of you close to my age, many lament that the Bell telephone system was broken up. Service is far from what it was when I was a young man. Absolutely true. But the price today allows us to live with that. When I was a young Army lieutenant making a thousand dollars a month in 1978, because of long distance charges (anyone remember those?) my phone bill was sometimes as much as $150 per month – 10-15% of my gross pay. Now I can have a cell phone that works anywhere and might cost about that much per month – adjusted for inflation a small fraction of what my phone bill at Ft. Campbell cost me. Under this analogy, jumping forward 40 years you folks are dinosaurs and lawyers like me have to just suck it up, but the good news is that our clients don’t pay as much. Right? WRONG – so wrong. Court reporter bills from the large national companies – and you don’t need me to say who they are – have become RIDICULOUS. A thousand-dollar charge for a basic transcript of a deposition taken by another party - a copy charge - no longer surprises me. Shock? Indeed, but no surprise. So, from my perspective, the embrace of technology and/or the presumed “efficient” provision of services by less skilled personnel seems to have had the perverse impact of lowering quality but at the same time raising the price. This is just wrong.
I am something of a libertarian and I am not a big fan of the government controlling anything that it does not absolutely have to control – 20 years of dealing with VA healthcare has that effect. On the other hand, some regulation is needed, perhaps just a necessary evil, but necessary nonetheless. The alternative of not regulating is worse. You don’t want me doing your brain surgery – even though I have represented a lot of neurosurgeons. Some states, my Commonwealth of Virginia being one, do not license court reporters. Mary Ann, also known to you as Savage Grandma, told me that she got her first tattoo at age 60. Her tattooist had to have a license. My barber needs a license - to cut what little hair I have left! You would think that the public interest in accurate transcriptions of testimony and court proceedings is at least as important as safeguarding us from errant barbers. I understand that the Virginia Court Reporters Association is looking into licensing for Virginia reporters, and I support that effort. Last year, the Virginia legislature did enact some regulation of court reporters, essentially mandating fair treatment of both sides, but it doesn’t go nearly far enough. Not surprisingly, there are other elements that are less enthused about the prospect of actual licensing – or even operating under the terms of the current statutes. This is simply not in the public interest.
One thing we can all be sure of is that the future will produce changes. It’s safe to say that the pace of technological changes will accelerate. What is not going to change in our legal system, however, is the need for trained professionals. Individuals possessing the skills and judgment to make our system work as it should. Obviously, that includes lawyers, but it also includes court reporters. The legal system working as it should requires that the record be accurate – and the accuracy of that record depends on you. Thank you for all you do. I cannot overstate how important you actually are.