Very few of us understand the role of the court reporter in today’s litigation process. Many of us simply have an image of the court reporter as the quiet person that is always present when testimony is given. The court reporter has always been and remains the official keeper of the record, but there is much more that every lawyer and legal professional should know about court reporting and court reporters today.
by Michael R. Boutot at http://www.irmi.com/expert/articles/2005/boutot01.aspx (reposted here with permission of the author) January 2005
International Litigation Management Association
Consider a few important points.
- A court reporter’s skill and knowledge of technology can help you win or lose a case.
- Court reporters do not all have the same skill sets.
- Court reporters do not all have the same resources.
- Some court reporters may have a business relationship with the opposition.
We hope we have motivated you to learn more about court reporting with one or all four of the above points, so let’s start with the basics.
Types of Court Reporters
There are two primary types of court reporting in the United States. Court reporters that work for judges and the courts are generally referred to as official court reporters. At one time, this was the only type of reporter. (Some say you can trace the origins of the court reporter back to the old biblical times of the scribes.) In more modern times, as demand increased for an officer of the court to provide reporting services outside the courtroom, the independent court reporter emerged. So today there are these two primary types of court reporters that are both officers of the court.
Traditionally, the official reporter was a government employee, employed by the court system within which they worked. Today, many jurisdictions rely on independent court reporting firms to supply the courts with court reporters on a contract basis. These jurisdictions find that they are able to reduce expenses in this fashion. This is common, for example, in the state of Florida. There, an official court reporter is actually an independent reporter. The independent court reporter is not an employee of the court but is an officer of the court that provides court reporting services.
While the distinction between the official and independent court reporter is not always as obvious as having two separate designations might imply, most of what follows speaks to the role of the independent court reporter.
Generally there are two categories of independent court reporters. There is the independent reporter that works individually as a sole practitioner. As sole practitioners, court reporters often work primarily for a limited number of clients. Sole practitioners are also more common in rural areas. The second category of independent court reporters is the independent reporter who is affiliated with one or more court reporting firms, either as an independent contractor or as an employee of one firm.
Types of Court Reporting
There is more than one method used in reporting. Typically, when we think of court reporting, we think of the stenographic method. Earlier in the history of reporting, the stenographer was often a pen writer, and this method can still be found in practice in a few sections of the United States.
Another method found in many areas is the “mask” reporter. This reporter wears a mask and repeats to themselves what they hear, identifying individual speakers, which is recorded on audiotape for later transcription. In some jurisdictions you may find a “tape” recorder. This is someone that simply tapes the proceedings and later hopes to be able to properly interpret and transcribe the tape.
Reporters certainly do not all have the same resources. Likewise, not all court reporting firms have the same resources. The number of reporters available in a given geographic area, the number of reporters with advanced skill sets and experience levels, and the investment and savvy in areas of technology can create significant variances in available resources.
Qualifications and Certifications
Today’s court reporter must obtain considerable education and develop considerable skill sets to successfully perform in the marketplace. Very few professionals at any level are required to have as varied an understanding of language, grammar, and the terminologies used by almost every kind of professional imaginable. A court reporter must understand specific technical conversations of doctors and lawyers and engineers of all types while accommodating variations on the English language that our world without borders makes inevitable.
Additionally, the reporter must have current knowledge of technology and understand its potential impact and application within the litigation process, especially as it may apply to the recording, archiving, and retrieval of the record.
According to the National Court Reporters Association (NCRA, see http://www.ncraonline.org/), the first step to becoming a court reporter with a nationally recognized certification is to pass the exam for the Registered Professional Reporter (RPR) Certification. To do this, a person must take dictation of literary matter at 180 words per minute (wpm), of jury charge at 200 wpm, and of testimony/questions and answers at 225 wpm. Allowing 3.5 hours to transcribe their notes, a minimum 95 percent accuracy is required to pass this first level. You must also take and pass a written knowledge and written skills test. Once a person achieves this certification, they must participate in the NCRA’s continuing education program to remain certified.
The next level is the Registered Merit Reporter (RMR). After becoming a RPR and maintaining that status for at least 3 years, or meeting certain other requirements, a person may apply to take the RMR exam. This consists of multiple components including a written knowledge test. To pass the skills test, you must handle literary at 200 wpm, jury charge at 240 wpm and testimony/Q&A at 260 wpm. You must still maintain a minimum 95 percent accuracy in transcription.
Reporters can obtain even higher levels of certifications that are primarily based on education and knowledge combined with length of time the above certifications are held. These include:
- Registered Diplomat Reporter (RDR)
- Certified Real-time Reporter (CRR)
- Certified Manager of Reporting Services (CMRS)
- Certified Legal Video Specialist (CLVS)
The ever-increasing need for knowledge in areas such as technology, which seems to change almost every day, combined with the increased demand for related services such as video depositions, subpoena services, real-time reporting, e-mail transcripts, imaging, and much more has helped to enhance the need for the existence of court reporting firms.
The nature of business at the law firm with extended hours and sprawling geographic needs, combined with heightened demand for reporting services, has made it increasingly difficult for the independent reporter not affiliated with a court reporting firm to provide all the services many law firms need. Many law firms find that they can be better serviced by relying on a court reporting firm that has the resources of many reporters to satisfy their varying needs. This still allows for the personal relationships that many lawyers find to be irreplaceable between a lawyer and a court reporter who is able to learn and understand how a specific lawyer works.
Perhaps even more important to the critical need for court reporting firms are the technology issues of today. It is virtually impossible for an individual court reporter to provide the technology needs associated with the discovery process in today’s litigation environment. Financial resources alone required to provide current technology may prohibit the individual from so doing. The time required to research changing technologies and the changing legal environment also makes it very difficult for the sole practitioner to compete.
In November 2004 I had the privilege of attending the annual meeting of LiveNote (see west.thomson.com) and their Certified Legal Service Providers (or CLSPs). Statistics show that over 81 percent of the 250 AmLaw firms in the United States are subscribers of LiveNote technology. In fact, LiveNote is now the most utilized of all litigation technology in law firms today. It is this appreciation of technology that is allowing the court reporting industry to help clients in controlling costs while literally improving on quality.
By affiliating oneself with a court reporting firm, which has strategic relationships with organizations such as LiveNote, individual independent court reporters may be best positioned to provide their clients with more and better services. This is not to say that there is not a place or situation in which a sole practitioner may be able to provide the quality services needed by their clients. (Historically most court reporting firms are started by individual court reporters.)
A court reporter can help you win your case by being strategically positioned with up-to-date knowledge of technological applications and by having ready access to all the cost-effective resources a lawyer may need from trial preparation to presentation. This especially applies to obvious areas such as the taking, preparation, presentation, archival, and retrieval of the official record and related material. It may be natural for the lawyer and other legal professionals to rely on and trust the independent court reporter to help determine the best technologies available and to put these technologies to work for the lawyer in various aspects of the litigation process.
Regulation and Costs
Court reporters do not all have the same skill sets. The national certifications referenced above explain various levels as sanctioned by the National Court Reporters Association (seewww.ncraonline.org). Certification and regulation of court reporters varies considerably from jurisdiction to jurisdiction.
The practice of court reporting varies considerably. Court reporters are officers of the court while in depositions and are often regulated at the state level. Because litigation often crosses state and jurisdictional lines, it is important to understand that what is usual and customary for court reporting services and transcript production or delivery may vary considerably from state to state or even between jurisdictions within a state. Even the way court reporting services are priced can vary, not to mention the basic costs of service.
The “page rate” is the most universal measurement of cost. The cost of the reporter’s services is based primarily on an assigned value for each page of the resulting transcript. This methodology is often not equitable for the reporter as a transcript may or may not be ordered. However, the page rate remains the primary way services are priced. By charging on a “page rate” basis, clients are able to somewhat control costs. In other words, one reporter may take 5 hours to complete a deposition due to inexperience and the need to pause and ask individuals to repeat themselves or to go slower. A more experienced reporter may be able to complete the very same deposition in 3.5 hours. Regardless, each deposition will be 300 pages. The savings are seen in a reduced hourly pay for the attorneys present.
When a transcript is ordered there are factors about which the buyer should be aware that might not be as obvious or clear as a quoted page rate. You may want to consider the definition of a page. A $3 page with 25 lines may be 25 percent less expensive than a $3 page containing 20 lines. You might need to know what the margins are, all of them, and the type size used.
While there are few jurisdictions that mandate the number of lines per page, most jurisdictions do suggest a “norm.” On average, a standard deposition is 25 lines and 50 to 60 characters per line. An extra inch or two in margin space and larger type can significantly affect the number of words and characters on a line and on a page. Following are a few other questions you might consider.
- Are you charged for the title and index pages as part of the total page count?
- Is there an appearance fee as well as a page rate charge? If so, is it an hourly charge or per diem charge?
- Are there administrative charges?
- At what page rate are additional copies billed?
- Some states require an original and two copies be supplied for the basic rate while most require an original and one copy be included. What can you expect?
- Do you need some form of a condensed transcript?
- Do you require a key word index?
- Can you use an ASCII disk?
- Is your software compatible if other disk formats are needed?
- Do you need to videotape the deposition?
- Does the videotape need to be date and time stamped?
- Should the written transcript and video be synchronized for possible trial presentation or other use?
- Are there additional costs for getting the video synchronized? If so, what are those costs?
- Have you made arrangements to have papers served?
- Are conference room facilities available, and is there a charge for using them?
- Who is responsible for getting the deponent to sign off on the transcript and in what time frame?
- Is video teleconferencing an option? If so, the equipment specifications are critical to the quality you may expect.
- What is the normal delivery time for a transcript?
- If you need your transcript faster than “normal,” what are the extra charges?
- Does the reporter have the ability to provide interactive real-time stream at the deposition? What is the extra cost for this service?
- Can the reporter provide an e-mailed transcript with hyperlinked concordance? What is the cost for this service?
These are some of the most common issues you may encounter. You will likely find this true even if you use one of the so-called national firms that has locations in different states and markets. This brings us back to our original four points.
The next point is rather controversial and difficult to define. Over the past decade or so there has been an increasing trend for consumers of large volumes of litigation services, such as insurance companies and large corporations, to require that court reporters enter into contractual relationships with them directly, thus bypassing the lawyer. These contracts often require substantial discounts in return for promises of large volumes of business.
For the defense attorney, some have suggested this can end the personal relationship between lawyer and reporter. Others have contended that this practice could lead to less experienced reporters with fewer resources doing this “contracted work.” For the plaintiff attorney, these contractual relationships could raise ethical questions concerning the “influence” the holder of the contract may have over the “unbiased” officer of the court. However, nothing suggests that the plaintiff’s bar cannot have the same success at obtaining favorable discounted rates. Some have suggested that cost pressures may tempt reporters to try to “make up the difference” by charging other parties a higher than normal price to compensate for deep discounts given the contracted party. Still others argue that all sides in the same matter should pay the same price for the same product.
There is growing momentum in what is called an anti-contracting initiative. According to the Association of Trial Lawyers of America (ATLA) as stated in a resolution passed in October 1998 by its Board of Governors and as printed in the February 1999 issue of The Journal of Court Reporting:
- [S]ixteen states have enacted or are considering enacting statutes or court rules prohibiting or strictly regulating such relationships to ensure the impartiality of the court reporting profession specifically and the courts generally; Now, therefore, be it resolved that the Association of Trial Lawyers of America endorses legislative and judicial efforts to prevent the establishment of any relationship between court reporters and parties to litigation that could create an appearance of partiality that is inimical to public faith in the fairness and impartiality of the judicial system.
Currently, there are now over 20 states which have introduced some sort of legislative action.
The opposite side of the coin is that such “bulk purchasing” of court reporting services is just a way to maximize buying power and that quality does not suffer. (The analogy here is groceries bought at Sam’s or Costco compared to a local grocery chain may be cheaper but are still groceries.) The same principal often applies in the service industry. If you hire a consultant for a 4-week job, you may pay $2,000 per week. However, if you hire her for 6 months, you may be able to do so for $40,000 or $1,538.46 per week, a savings of nearly 25 percent. Conceptually, the insurance industry basically does the same thing by offering discounts to policyholders with multiple vehicles or who opt to have their homeowners policy and auto policy with the same carrier. In those situations, despite the rate paid, the same quality claim service is provided to the policyholder when a claim is filed. To argue that the quality is less may not be a fair assessment in most instances.
The final outcome in this matter is unknown. What is important is that there is an understanding of “treating the problem, not the symptom.” In short, if there are concerns relative to ethics and/or service, the provider should be held accountable and terminated if concerns continue. To discredit an opportunity to save money while maintaining excellent service is to defeat the purpose of cost control measures.
In closing, you should know that a court reporter could be a significant resource for your law firm, whether in-house staff counsel or outside panel counsel, not only as keeper of the record, but throughout the litigation process. You should also know that all court reporters are not equal. Some lawyers and their legal support staff rely on third-party organizations to assure that quality standards are met and exceeded.
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