My cyber-colleague Steve Minor has a very interesting (and, deep down, quite terrifying) post on his excellent site, SW Virginia Law Blog. You’ll need to scroll down to July 4. The topic is a lawsuit filed by a coal company against a court reporter who allegedly dropped the ball, in a major way, on the transcript of a 32-day trial, in which the company lost a $50 million verdict. The company ordered the transcript in order to appeal, and got several extensions of time due to the reporter’s statement that she was having trouble with the transcript. In fact (according to the suit), she wasn’t having trouble; she was just ignoring the project. An investigation by the West Virginia Supreme Court’s administrative office revealed that she had no records at all of several days of trial, and sketchy records of other days.

The company was eventually able to piece together something of a transcript, using incomplete tape recordings of the trial, but it still found itself missing three days in full and major chunks of several others. Since West Virginia court reporters are appointed by the state, the company filed an eight-figure lawsuit against the reporter under 42 USC §1983, asserting that she acted under color of state law to deprive the company of its right to appellate reveiw of the judgment.

Now, you and I know that the reporter isn’t likely to be able to make good on the judgment, assuming the company can prevail at trial; but that’s not the point of this note. The issue here is that we are each vulnerable at certain choke points in the litigation process, in which we have to rely upon others. The work of court reporters is one such instance.

In Virginia, where court reporters are not hired by the court in civil cases, lawyers have the ability to select their own “contractors” to perform the work. In that sense, we may have an advantage over our sister state to the west. But you should know that here, court reporting is an unregulated profession; the General Assembly has declined to regulate them in such a way as to ensure that only competent professionals take down proceedings. There is no requirement for a fidelity bond or other guarantee of performance. The one exception is that the Commonwealth hires court reporters in felony trials, much as West Virginia hired this one in a civil case; many circuit courts require that such reporters be graduates of some sort of court reporting school. Other than that, the only formal requirement for being a reporter is that one must be a notary, so as to be able to administer oaths.

The simple lesson here is to select your court reporters with the same degree of care with which you would select a new hire in your office. It might be a $55 million mistake to select a reporter based on which firm will give you the lowest bid for the work. Get a reporter whose work you know and trust, one you can feel confident of to do the work in a timely and accurate fashion. You might also want to request that a different reporter take down the proceedings on each day of multi-day trials. (I will add here my sincere thanks to my own ultra-reliable court reporting firm, Ron Graham & Associates, for some of these insights, and for helping me to sleep well at night.)