Judges, Unions & Court Reporters strike back at Bee Editorial Board

Posted on February 13, 2013

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Before we get into the actual responses, you might recall that we mentioned that the electronic court reporting issue that recently came up is a sideshow to divert your attention from the death star’s true objectives: More money for themselves, more financial pain and anxiety for court employees everywhere all in an effort to get everyone to speak with one voice about additional judicial branch funding, which in JC\AOC terms translates to more funding for the JC\AOC.

JUDGE W. KENT HAMLIN: Court reporters are vital

The Fresno Bee ran an editorial Feb. 3 asserting that “strong evidence and real court experience” demonstrates that electronic recordings are cheaper and more reliable than trained stenographers and that “now is the time to switch to electronic recording in every California courtroom.” Based on our years of real court experience as judges of the Superior Court, we know those statements are simply not true.

A reader might conclude from the editorial that courts, bullied by the court reporters’ union, have rejected attempts to implement available technology. In fact, nearly all courts in California use digital recording extensively. But electronic recordings cannot fully replace court reporters in a trial court, nor is it likely that their expanded use would result in significant savings to the taxpayer.

Your editorial correctly notes that the California Supreme Court and appellate courts use electronic recording devices with no significant concerns about reliability and accuracy. Those courts do not take witness testimony, but instead rely entirely on the record created in the trial court. Attorneys and justices speaking one at a time into microphones can be understood and later transcribed; the dynamics of testimony in trial courts are much different.

Witnesses mumble, speak softly and often have difficulty using a microphone. Attorneys move about to retrieve exhibits, approach witnesses or display items for the jury. Often witnesses answer a question while an attorney is still asking it, even as opposing counsel lodges an objection. Court reporters have the unique ability to obtain an accurate record in spite of these difficulties; a transcriptionist simply writes “unintelligible.”

Frequently important parts of recorded proceedings are later found to be unintelligible or missing; sometimes the recording of an entire trial is lost or destroyed. Certainly everyone suffers, including the taxpayer, if one of these proceedings has to be retried because a technical glitch prevents an adequate review of the proceedings. If witnesses and evidence are unavailable for a retrial when the error is discovered there is a well-documented risk that persons convicted of serious crimes may be released and their charges dismissed. How will we explain that result to victims of these crimes or to surviving family members?

Even if a trial transcript of comparable accuracy could be obtained through digital recording, it would not be more affordable. State-of-the art equipment is expensive and requires monitoring and maintenance. Reducing a recording to a transcript requires considerable time, skill and expense. Attorneys would use this option for depositions if it were more affordable and of comparable accuracy. It is not.

In a trial court there is no substitute for contemporaneous transcription by a trained and experienced certified shorthand reporter. How are we to read back or review a digitally recorded question or answer? If a deliberating jury asks for witness testimony, shall we play a recording laden with objections, rulings, stricken testimony, sidebars or privileged attorney/client conversations? Will we allow expediency to trump due process and dispense with reading back testimony altogether?

Only the very best reporters obtain certification, after years of training and testing. Court reporters purchase, update and maintain their own sophisticated hardware, software and supplies at considerable expense. They learn the sophisticated techniques of their trade and important legal terminology. They retain notes and drafts in case a transcript is required perhaps years or decades later, and only then are they paid for the transcript, at a rate that has not increased in over 20 years.

Court reporters are indispensable to the administration of justice. They are well-paid professionals, as they should be. They cannot be replaced by existing technology, whatever the cost. To suggest otherwise does a disservice to court users already severely impacted by continued budget cuts.

THE HON. W. KENT HAMLIN IS A FRESNO COUNTY SUPERIOR COURT JUDGE. HE SUBMITTED THIS OPINION ON BEHALF OF HIMSELF AND THE FOLLOWING JUDGES: HON. WAYNE ELLISON, HON. JEFFREY Y. HAMILTON, JR., HON. KRISTI R. CULVER KAPETAN, HON. DAVID GOTTLIEB, HON. JAMES A. KELLEY JR., HON. CARLOS CABRERA, HON. JOHN F. VOGT, HON. ALVIN M. HARRELL III, HON. DAVID KALEMKARIAN, HON. EDWARD SARKISIAN, HON. JANE CARDOZA, HON. JON KAPETAN, HON. ALAN SIMPSON.

Read more here: http://www.fresnobee.com/2013/02/10/3168824/w-kent-hamlin-court-reporters.html#storylink=cpy
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Another View: Court reporting laws protect litigants

By Kristi Garcia and Doreen Perkins Special to The Bee

The Bee editorial on court reporting (“State courts must enter the electronic age”; Editorials, Feb. 1) tells a tidy story that fits satisfyingly into preconceptions about government waste and powerful interests. There’s one problem with such simple fables, however: Reality is rarely so uncomplicated.

Let’s start in the courtroom. It is a complex environment, with multiple voices, often in conflict, with some conversations being privileged. What could possibly go wrong with a simple electronic recording of all this?

A lot, it turns out. A cough in the gallery, a passing truck, variations in volume, cross-talk, heavily accented speech, names and legal terminology prove surprisingly difficult for transcribers working from a distance. Equipment failures and operator error are widespread. The result? Inaccurate and incomplete records of judicial events that people’s lives depend on.

In the rush to modernize and save money, courts across the country have sacrificed the core purpose of keeping court records. For matters related to a person’s innocence or guilt, few dispute the importance of a court reporter’s presence. Wisely, California’s Legislature has recognized family matters and juvenile matters heard before a judge are, likewise, momentous and, therefore, require the best available technology: a technology-equipped, trained and certified human professional. Too many courts in California are flouting these laws, thus depriving families and children of the records they need to appeal any miscarriage of justice.

Meanwhile, after decades of experimentation and study, nearly every state in the nation has arrived at a blended system, with some electronic recording in less sensitive or complex cases, but preserving the use of court reporters, especially in areas where a record is of vital, life-altering importance.

The fiscal picture, too, is significantly more complex than The Bee acknowledges. Court reporters bring in $40 million a year in fees that directly fund the courts. Their licensing fees also fund transcripts for indigent clients. And the costs of replacing court reporters – regularly purchasing up-to-date equipment, maintenance, document storage, transcription and more – must be accounted for.

In a complex and fluid environment, human beings are the most effective and efficient guardians of that fundamental linchpin of fairness, a complete and accurate record. That’s why our two organizations, the California Court Reporters Association and the SEIU, will be working together to ensure that California’s common sense laws on court reporting are enforced.

Read more here: http://www.sacbee.com/2013/02/09/5176926/court-reporting-laws-protect-litigants.html#storylink=cpy