Defending the Kerosene Lamp: Stenographers’ Opposition to Digital Reporting.

As you read this article from your computer, please keep in mind that the technology you hold in your hands was almost branded as “too dangerous” to be used. In the late 1800s Thomas Edison and Andrew Carnegie were the pioneers in wiring the first homes in America with electricity, replacing kerosene lamps as America’s primary light source. While Edison and Carnegie were embarking upon this venture, John D. Rockefeller was deeply troubled. Rockefellar’s company, Standard Oil, sold kerosene to every American home. If electricity caught on then Rockefeller’s kerosene fortune would disappear. Rockefeller spent millions of dollars trying to convince Americans that electric lighting would electrocute their children. Thankfully, Rockefellar’s efforts were for naught and the new technology was safely adopted. The lesson is simple: people will often oppose the advance of technology when it is more profitable for them to keep American homes filled with kerosene lamps.

Today, the court reporting industry finds itself at a similar crossroads. The “Edisons” of the industry have developed and implemented digital court reporting equipment. This equipment uses sophisticated multi-channel audio recording equipment (with redundant back-up systems) to capture and annotate the audio from the deposition. Digital reporters also use specialized software that allows them to replay any question or testimony instantly. Most amazingly, digital reporting can be learned and perfected in as little as six months of training. On the other side of the aisle, the “Rockefellers” of the court reporting industry are the stenographers. Rather than capturing the audio, a stenographer attempts to type all of the testimony in short-hand. Her stenography machine then digitally records her short-hand code. This has its drawbacks as it is impossible for a stenographer to type two speakers simultaneously which digital reporters can do with ease.  Stenographers are forced to either interrupt the deposition or miss out on testimony (or hide a tape recorder in their bag). Unlike digital reporting, a stenographer must complete two (2) to six (6) years of formal schooling to learn stenography. Stenographic schools are disappearing and severe shortages of stenographers are being projected by the National Court Reporters Association.

If you do not know much about the court reporting industry you are probably thinking, “Sounds like digital reporting would be willingly embraced to fill the shortage of stenographic reporters.” You are only partially correct. Digital reporting is growing in every market, but it has been aggressively opposed by stenographers who are trying to convince attorneys that digital reporting is too dangerous to use. One stenographer has even claimed that attorneys would be better off using a pen writer (someone who tries to write all of the testimony with a pencil) than a digital reporter. Their argument is that a digital reporter runs the risk of not capturing the audio of the deposition and would be left with only her annotations. This is a spurious argument and one that applies equally to stenographers. A digital reporter has multiple independent channels of audio recording. Her audio can be downloaded to the cloud in realtime (and saved to her laptop). As long as the digital reporter monitors her equipment, the record is guaranteed. Stenographers claim that they are “typing” the record and creating something more tangible and therefore more secure. However, very few stenographers actually type to paper. Instead, the stenographer’s key strokes are saved on a digital computer file. If a stenographer’s digital file is corrupted or lost then no record of the deposition will exist. In other words, the same risks faced by a digital reporter are inherent in the equipment used by stenographic reporters.

When faced with the reality that stenographic machines are simply recording shorthand instead of audio, stenographers retreat to arguing about anecdotal examples of digital reporting equipment failing. There have been examples of a courtroom administrator failing to turn-on the digital reporting equipment during a trial. Obviously, such examples (always in a courtroom setting) occur because a court official failed to use the equipment properly or even monitor it. There was nothing inherently wrong with the equipment. Moreover, there are thousands of courtrooms utilizing digital reporters. Here in Kentucky, virtually every courtroom has been digital for over twenty years. Pointing out a handful of mistakes actually proves how reliable the technology has been.  If it was as troublesome as suggested by its opponents then our court system would literally be mired in gridlock.  The reality is that it just has not happened.

Stenographers, on the other hand, have caused their fair-share of errors. On January 2, 2012, ABC News reported that in Florida, Randy Chaviano’s murder conviction was overturned because the stenographer had “erased the entire transcript of his murder trial.” Similarly, the Omaha World-Herald reported on June 11, 2012 that convicted child molester Charles Kay would get a new trial due to stenographic errors. The stenographer in that case, Emilie Pavon, filed an official record that listed thirteen jurors instead of twelve, listed the judge’s and prosecutor’s names incorrectly, was missing numerous pages, and even listed the defense attorney as appearing on behalf of the State of Nebraska.

Please keep in mind that the point of this article is not to undermine the stenography profession.  Stenographers are an effective and accurate means of maintaining the record.  The point is simply that their equipment and practice is susceptible to the same potential problems of digital reporters. The question for attorneys should not be one of digital versus stenographic but should instead be, Do I have a good reporter?

Kentuckiana uses both stenographers and digital reporters. Both have unique skills and can provide accurate transcripts. Only a stenographer can provide realtime reporting.  Only a digital can record multiple speakers simultaneously without interruption.  The legal community should embrace both forms of reporting without caving into scare tactics about potentially losing a record. People who are disparaging digital reporting (and advocating the use of pencils) are doing so in order to control the market and increase the cost of court reporting.

We are all fortunate that John Rockefeller’s attempt to frighten Americans into using kerosene instead of electricity failed. Likewise, let us hope that a few stenographers will not scare the legal community into trading-in their laptops for No. 2 pencils.

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