Attorneys say it's time court intervenes on court reporters

The union that represents court reporters in California has been hinting it might sue Los Angeles County Superior Court for expanding the use of electronic recordings in some civil cases. It's a fight some attorneys - who say they are sick of costs and unavailability of court reporters - say they would welcome.

"There is likely going to be litigation, and in my opinion it's about time," said Erin Smith, co-founder and past CEO of the Family Violence Appellate Project. "I just think that's where we are, unfortunately. This has been going on in the Legislature for over two decades, this stalemate."

The California Court Reporters Association has successfully argued to lawmakers that human court reporters provide superior accuracy and reliability compared to automated systems, particularly in complex cases with multiple speakers, technical jargon, or sensitive matters. Their lobbying efforts have helped slow down or limit the adoption of digital recording technology in favor of preserving traditional court reporting methods.

But under a directive issued Thursday by L.A. County court Presiding Judge Samantha P. Jessner, a judicial officer can allow the electronic recording of "certain family law, probate and civil proceedings so that litigants have access to a verbatim record of those proceedings" whenever a court reporter is unavailable.

Jessner's directive was the first move to loosen the court reporter union's grip on how judicial proceedings are memorialized. The Judicial Council has not weighed in on what it thinks of LA County's move, but did share Jessner's press release and a YouTube video of her press conference on Thursday. Most of California's other 57 trial courts appear to be waiting to see if Jessner is successful before following her move.

The Los Angeles County court has been among the most vocal in the state about its difficulty in hiring court reporters, as well as the expense of hiring reporters from private companies. Neville L. Johnson, senior partner with Johnson & Johnson LLP in Beverly Hills, said it has become increasingly untenable to hire a reporter in civil cases with less than $150,000 at stake. Meanwhile, rates private companies can demand make it difficult for courts to hire from the limited pool of trained court reporters.

"We don't have any difficulty hiring court reporters," Johnson said. "The issue is the cost of taking depositions these days has gotten to be exceedingly high, so that the average cost of a deposition is probably $2,500. That is a lot of money."

The court's announcement drew a rebuke from several organizations representing court reporters. In a news release, Cindy Tachell, president of the Los Angeles County Court Reporters Association, said she was "dismayed" that the court had failed "to invest in a strong court reporter workforce."

"LACCRA is still evaluating the judge's order and won't be discussing any possible future actions at this point," Tachell said in an email when asked if her organization might sue.

"I believe that it is running afoul of the law," said Stephanie Leslie, co-founder of Regal Court Reporting in Santa Ana and president of the Deposition Reporters Association of California.

"I do think that a lawsuit could be considered," Leslie said. "However, our concern is: Would we really get a fair shake? The judges are probably going to protect themselves. And would there be a judge that would be willing to stick their neck out?"

A court challenge could claim the Los Angeles court violated the state limits on recording or violated labor contracts with court reporters. Supporters of increased recording say the status quo violates the constitutional rights of litigants.

Alphonse F. Provinziano, senior attorney with the family law firm Provinziano & Associates in Beverly Hills, said Jessner's order ran over 200 pages, including exhibits illustrating her court's interpretation of the law and supporting evidence.

"It's almost like the court has laid the groundwork for a legal defense," said Provinziano. "It does appear that they've made what we would call their prima facie case."

He added, "The onus is now on the court reporters to now file their lawsuit."

The Daily Journal reached out to more than a dozen other courts around the state. Several declined to comment. But some confirmed they find themselves in a comparable situation to Los Angeles.

"We are using electronic recording in civil and family law when the judge makes a finding that no court reporter is available," Darrel E. Parker, executive officer with Santa Barbara County Superior Court, responded in an email.

But Parker said the court was also doing what it could to shore up the court reporter profession. "We are actively recruiting and have offered signing bonuses and tuition reimbursement," he wrote.

"The Court currently uses electronic recording for Criminal Misdemeanor and Civil Limited Jurisdiction Unlawful Detainer matters as permitted by statute," Dan Radovich, communications officer with the San Mateo County Superior Court, responded in an email. "A court reporter is always provided for case types mandated by statute and California Rules of Court."

But Smith, from the Family Violence Appellate Project, said the instances where litigants can make an electronic record remain limited.

"The law allows you to electronically record if there's not a court report available, but only in on the criminal side, misdemeanors and infractions," Smith said. "On the civil side, it is only in limited civil cases where the value is under $35,000. Now it used to be $25,000. It is probably not nearly enough of an increase, really."

Paul R. Kiesel, a partner with Kiesel Law LLP in Beverly Hills, said he participated in a pilot program on electronic recording in the Los Angeles County Superior Court -- in 1996. The three-week trial was recorded, he said, but never transcribed because the case was resolved without an appeal. But the recording would have been available if needed.

Kiesel called on lawmakers to liberalize the rules around electronic recording.

"I believe the Legislature needs to act," Kiesel said. "I'm not sure it's a place that the courts ought to weigh in."

But Smith said she is not confident lawmakers will take on the issue. Unions -- including ones representing court reporters and translators -- are a key Democratic constituency. Groups representing court reporters were able to stop SB 662 during the just-concluded legislative session. It would have allowed electronic recording "in any civil case," on the condition that a certified court reporter be given the opportunity to transcribe the record if it were needed.

"The problem is still getting worse and it it's just to the point where it's not acceptable or, in my view, constitutional to just have hundreds of thousands of people without access to the appellate court system," Smith said. "And I don't think there's anything else to be done in Sacramento."
"I think push has come to shove," Johnson said. "I would not be surprised if we would end up in the court system. I hope there is a court reporter who will be able to take down those proceedings."