It’s time to allow for audio recording in family court

Family law courts throughout California are quietly changing how they serve divorcing couples and their families, as the state’s most populous counties – including Los Angeles, San Francisco, San Diego, and Sacramento – will no longer provide court reporters. The service was formerly covered by the state for free, and only on occasion was it subject to reimbursement if the hearing went over 45 minutes.

This comes due to a widespread staff shortage of certified court reporters, even after the state gave courts $30 million earlier this year to hire them for family and civil courtrooms. Court reporters are now being assigned to largely cover felony and juvenile cases.

That means well over 13 million people — roughly a third of the state’s population — will now either have no access to a court reporter in family law courtrooms or have to pay thousands of dollars to hire one out of their own pocket.

Court reporters are a crucial part of a family courtroom, especially during a contentious divorce trial. Their transcripts help both sides see which facts were agreed on and what both sides and the judge said about various courses of action.

Without an accurate transcript, lawyers may come to a verbal agreement in court, only to find later that they can’t agree on what they agreed on. That leads to another hearing, more delays, higher legal fees and a less efficient family court system.

Alternatively, the divorcing couple can hire a court reporter on their own, but that’s just one more expense on top of the fees they’re already paying.

Fortunately, there’s a solution, but it will require lawyers and judges to let go of some of their preconceptions about how courtrooms work: allowing the use of a recording.

The legal profession has long been skeptical of audio and videotaping, fearing that they will alter the dynamic inside the courtroom or be abused by grandstanding lawyers to try a case in the media. That is certainly a risk in high-profile criminal cases like O.J. Simpson’s trial in the 1990s or in arguments before the Supreme Court.

But for your everyday divorce case, as long as both sides agree, an audio recording would simply be documentation of what happened in the courtroom.

Currently, audio recordings are permitted in misdemeanor and infraction cases. Audio recordings in family courtrooms are something that can be easily implemented with current technology and would only require the state to change government code to allow audio recording of cases in family court.

The cost savings would be tremendous, as the average cost of a court reporter is crippling. The appearance fee just to show up ranges between $250 to $2,000 a day, depending on the court reporter firm and the availability. Then there’s the cost for the preparation of transcripts, which can be several hundred to several thousand dollars more.

These fees will likely only go up, due to a shortage of court reporters right now.

In contrast, a transcript from an audio recording can easily be prepared at low cost, and there’s a recording to verify against what was said that can be listened to. Furthermore, a party could, if they wanted to, have an official court reporter prepare a transcript based on the recording.

Allowing recording would be a simple fix for the legislature, which would just need to update Government Code section 69957 to allow audio recordings in cases brought under the family code, and all proceedings brought under Code of Civil Procedure 527.6, which includes Civil Harassment Restraining Orders, and the Code of Civil Procedure sections 1209 – 1222, which includes contempt actions brought to enforce court orders.

Without this change, at least a third of California residents will face a lower quality of justice in the family-law courtroom. In smaller counties, court reporters are still available as there is not as much demand and family-law courts aren’t as neatly separated from other courts.

Court reporters will still be available for divorces involving wealthy individuals who can afford to pay as well as in civil lawsuits where large plaintiff-side injury firms and corporations will both have funds available.

But for the average person who just wants to get a divorce, this will be one more expense.

Allowing audio recordings in family law courtrooms is a simple fix that will save families money, many of whom are already struggling as they divide up their money and other assets.

It will also help promote justice in the divorce process, helping kids caught in the middle and ensuring the very parents who need our legal systems’ help the most can move forward.