Choosing a Court Reporter: 101

What Law School Didn’t Teach You

During a deposition last month, I had the fortunate opportunity to be the reporter on a young attorney’s first ever deposition. I asked the young man why he chose our reporting firm over the many other options available in Louisville. (Admittedly, I was hoping to hear some high praise about our company but was surprised to learn he had no real input in the process.) Instead, he informed me that he had no idea how to schedule a deposition or a court reporter, had no idea what reporters really do, and was just focused on the substance of the questions he was going to ask. Accordingly, he asked a secretary in his office to set up the deposition for him. Had he asked a different secretary, I thought, I probably would not have even been scheduled. The reality is that “Choosing a Court Reporter: 101” is not taught in law school.

While most of you have been taking depositions for quite some time, you know as well as I do that our industry is rapidly evolving, so let’s evaluate what is important in choosing your court reporter. Keep in mind there are different types of reporters with different technological capabilities. As a litigator, consider the type of case you are handling, your client’s budget, and your courtroom strategy when choosing a reporting format. Evaluate each court reporting firm’s technical abilities and its production department. Ask good questions, like, does the firm have both stenographic and digital court reporters? Full disclosure: I am a digital reporter and have the utmost respect for stenographers (like my boss). My purpose is to explore the advantages of both.

Evolution of Court Reporting

Over the millennia, court reporting has evolved from scribes to shorthand, shorthand to stenography, and now stenography to digital court reporting. Both stenographic and digital court reporters have different capabilities. The best way to explain the differences between the two is to first define stenographic court reporting.

Stenography works by using a specialized machine to phonetically record speech. In other words, a stenographic reporter writes testimony in a shorthand code (so as to type more quickly) and her machine will translate most of that code into readable English. Keep in mind that no stenographer is capable of typing the speech of two people simultaneously and must interrupt the speakers or choose which speaker to follow. It is also true that even the best stenographer is incapable of catching every word. That is why they rely on audio back-up to proof their work.

Stenographers offer some services that digital reporters cannot. For example, stenographers can provide real-time court reporting services that allow the attorneys to read the transcript during the deposition. The best analogy would be that of closed captioning. Like the words you see across the bottom of your television screen, a qualified realtime reporter can put the deponent’s words directly onto a laptop or tablet for your viewing while the deposition occurs. It is not a perfect transcript, but it serves as an accurate rough draft to utilize as the deposition proceeds. This service is justifiably more expensive as it requires substantial training on the part of the reporter. It can also require a realtime scopist (the individual who corrects machine translation errors) who is off-site and assists as the deposition is streamed to her location. Realtime is crucial in many complex litigation cases. It is rarely needed for simple car wreck claims or other types of straight-forward personal injury suits.

Usually paid per transcript page, stenographers may not want to take short depositions, like workers’ comp depositions, because fewer pages translate to lower per-day earnings. Likewise, there is an economic disincentive for stenographers to travel long distances to depositions unless they charge high appearance fees.

The Affordability of Digital Reporters

A digital reporter uses modern recording equipment to capture multiple recordings of the testimony while annotating the proceedings. The reporter’s annotations are time-linked to the corresponding audio so that one can instantly go to that point in the record and re-listen to the actual testimony in realtime. Multiple audio recordings are taken simultaneously and can be downloaded to secure cloud servers in realtime. When the deposition is complete, the audio and annotations are given to professional transcriptionists. The transcript is then proofed twice, once by a proof reader and usually once again by the production department. Such a system is faster, is usually error-free, and less expensive.

Digital reporters rarely, if ever, need to instruct speakers to slow down their speech due to accent, or because complex medical or technical terminology is being used. The recording process captures the words exactly as spoken so the transcriptionist can slowly review for verbatim accuracy after the deposition instead of during the deposition. Because each speaker has a separate microphone, a digital reporter does not need to interrupt the proceeding when more than one person is speaking at the same time. Instead, both can be recorded at the same time.

Most electronic reporters are hourly or salary employees. As a result, digital reporters are often a much more affordable choice for short depositions and those that require travel

Secure Storage and Synchronization

Both a stenographer and digital reporter can and should take advantage of the numerous online applications which allow their data to be downloaded to a secure server as the deposition proceeds. This is absolutely critical. Earlier this year a Florida man convicted of murder and sentenced to life in prison was given a new trial because the stenographic courtroom reporter had accidentally deleted her copy of the courtroom transcripts prior to appeal. This is the danger that comes with any reporter who only saves their work to a desktop. Downloading to a cloud-based server ensures an accurate record is preserved. Let’s face it, there are numerous instances of stenographic machines breaking or being damaged (just like digital machines can), and the only way to ensure the shorthand notes and audio is preserved is to download as soon as possible. A secure hard drive and cloud server virtually guarantees that a record is preserved in perpetuity.

Court reporters can now synchronize the audio and video from a deposition to their transcribed text. These services allow attorneys to play back the video of the deponent at trial and have the deponent’s testimony appear in writing across the bottom of the screen. Even if video is not taken, the jury can still hear the deponent’s testimony from the reporter’s recording. Jurors are then able to hear the speaker’s tone of voice which often reveals more than the actual words spoken. Both stenographic and digital reporters are capable of implementing this technology, but not all have done so.

In the legal workplace, technological advances are assisting us in achieving goals of greater efficiency, reliability and reduced costs. A more fair and just trial can be had with interactive monitors and projectors. As Judge McKay Chauvin puts it, “We’re seeing more and more of our juries comprised of millennials who are audio and visually oriented.” Kentucky’s courtrooms have been on the cutting edge of such advances by implementing synchronized digital court reporting systems in the vast majority of our courtrooms. The LBA has raised over $400,000 to upgrade Jefferson County’s Circuit Courts and further take advantage of the benefits provided by digital court reporting and synchronization. While touted by Judge Chauvin as “the most technologically advanced courtroom with integrative technology in the United States,” litigation attorneys can only take advantage of this new courtroom if they choose a reporter who can create a synchronized CD which can play a deponent’s voice and video along with the text of the deposition.

Educate yourself about reporting options and choose a firm or reporter who can supply you with the tools needed to be successful at trial. In the meantime, I will be tracking down and thanking the secretary who referred the young attorney.

Ten quick questions that every trial lawyer should ask their reporter (and get a “yes”):

(1) Do you offer both digital and stenographic reporting?

(2) Is each transcript reviewed by an independent proof reader prior to production?

(3) Do you store shorthand notes and audio on a secure server and a secure cloud server?

(4) Do you provide DVDs with the audio/video synchronized to the text?

(5) Are your DVDs compatible with the new Jefferson County courtroom technology?

(6) Do you travel within the state for no extra charge?

(7) Is scheduling available 24 hours per day?

(8) Do you have a production department which can assist with courtroom technology issues?

(9) Can you produce a transcript within a week for no extra charge?

(10) Do you offer realtime reporting services?