The Practitioner’s Guide to the Care and Feeding of Court Reporters
By L. Steven Emmert, VBA News Journal – Summer 2009
Who’s the highest-ranking person in a trial courtroom? No; it’s not that scowling guy with the robe, menacingly waving the gavel at you. It’s the court reporter. Want proof? Well, we can agree that the judge can tell everyone in the courtroom to shut up (assuming he’s in a bad mood; otherwise he’d phrase it more delicately than that), and that he can enforce such a directive. But the court reporter can silence the judge. Code §8.01-420.3 provides that the judge can’t direct that the reporter go off the record unless everyone consents. This statute is designed to ensure that all trial court proceedings are on the record, to facilitate appellate review. That means that the court reporter can say, “Excuse me, your honor, but I have to change paper,” and his honor has to just sit there and fume in silence.
Now that you understand why the reporter is the highest-ranking person in the courtroom, here’s why she is also the most important person in your appeal.
Rule 5:11(a) provides that the transcript of trial court proceedings is a part of the appellate record as long as it’s filed within 60 days after the date of judgment. The transcript is essential to appellate review. You already know that the contemporaneous objection rule (Rule 5:25) is the biggest barrier by far to appellate review of the merits of an issue; the transcript helps the justices to identify where, exactly, you raised an objection in the trial court, how you presented it, and how the trial judge resolved it. In essence, if you don’t have a transcript, then you don’t have an appeal. (There are exceptions, such as where the trial court sustained a demurrer. In that instance, the only issue is the sufficiency of a pleading, so a transcript will usually be immaterial. But this kind of appeal is comparatively rare. In addition, you may be able to resuscitate your appeal by using a written statement of proceedings under Rule 5:11(c). I’ll post a separate essay on that rule in the near future.)
What’s more, the timely filing of the transcript is one of the mandatory deadlines in the appellate rulebook. Rule 5:5(a) specifically identifies these mandatory deadlines (which the court interprets as jurisdictional), and the filing of the transcript is right up there with the notice of appeal and the petition for appeal. If you don’t timely file a transcript, you’re likely to get a letter from the court directing you to address how the court can consider the appeal without it. Unless you have one of those rare appeals (like the one with the demurrer) where a transcript isn’t necessary, your appeal is probably headed for a premature end.
I hear all kinds of horror stories from trial lawyers about their dealings with court reporters. I hear about delays in getting transcripts, inaccuracies, even what they perceive as predatory pricing (including the suspicion that the other side’s reporter is giving a sweetheart deal to the “friendly” lawyer, expecting to gouge the “unfriendly” lawyer on the copy rate). Many lawyers suspect that their opponents are playing footsie with their preferred reporter in this or similar ways. I’m good-natured enough that I doubt there’s any real truth to these suspicions. But my customers fret about it. Happily, even if they’re right, there is something they can do about it. Here’s that something:
You must cultivate a good working relationship with a competent, reputable, and reliable court reporting firm.
You must bring a reporter from that firm to any proceeding in which the trial court will decide something more important than what to order for lunch.
Comment to Rule #1:
You should be prepared to spend at least some time meeting the first of these requirements: Finding a competent, reputable, and reliable reporting firm. Ask about more than just rates (although you should ask about those, too); find out what the firm’s standard turnaround time is for non-expedited transcripts. Ask if the firm is affiliated with the National Court Reporters Association and adheres to that association’s Code of Professional Ethics. Find out how much experience each reporter in the firm has. As you’ll see below, there are advantages to working with a firm with multiple reporters, so you should ask how many reporters work there. Find out how many lines of text the firm prints per transcript page. (25 lines per page is standard. Keep in mind that an unscrupulous reporter can give himself a largely-invisible 12% raise by printing only 22 lines per page.) Get references, and ask to see examples of their work; if you see loads of blank space on many pages, keep shopping.
Comment to Rule #2:
Yes, I said any proceeding. You should volunteer to provide the reporter for every deposition, every hearing, every trial. The only exception is where the deposition will be in another jurisdiction, or so far away that your reporter doesn’t travel that far. Even then, ask your reporter for a recommendation in that jurisdiction or locality.
If you follow these two simple rules, over 90% of your transcript-related problems will vanish immediately. You’ll know in advance what to expect when you get a bill. You’ll know how long the reporter generally takes to turn transcripts around. You won’t have to worry about trying to convince a complete stranger that she typed four when what you really said was before – or worse, that she left out a not. You will be able to file transcripts with confidence instead of grumbling about getting home-cooked by a . . . a menial functionary, for cryin’ out loud!
Well, perhaps that’s step 1 in your conversion away from the Dark Side. Court reporters are not mere functionaries. They are not machines and they’re not slaves who must do everything that you direct in order to comply with your wishes. (Neither are court clerks; but that’s another essay.) They’re professionals who deserve your respect, and that includes the times when you’re having a bad day. Start out by treating them with courtesy, in the way you would want to be treated.
Toward this end, I have developed a set of procedures you can use to care for and feed your court reporters, and reduce the transcript-related stress in your life.
1. Call in advance! I know that emergencies sometimes arise in your practice, but it’s rare that the need for a court reporter will arise without warning. Ideally, you should call your reporter the same day you select the hearing or trial date. Don’t wait until 5:45 pm the day before the 9:30 am trial; although many reporters can accommodate such last-minute requests, they don’t enjoy it. Would you?
2. Provide plenty of contact information, for yourself and your secretary. The reporter may have questions before the hearing, or he may want to contact you afterward with a question about something that occurred during the hearing. Make it easy for him to get in touch with you.
3. If you cancel or reschedule the deposition, hearing, or trial, don’t forget to call the reporter. That can save you an appearance fee, and the reporter the hassle of getting dressed up to go to court.
4. Let the reporter know in advance if you’ll be needing expedited or daily transcripts. This enables the reporting firm to make arrangements that are in your mutual interests. For example, the firm can send John in to take down the morning’s proceedings. At the lunch break, he heads back to the office to start transcribing; in the meantime, his colleague, Mary, appears to take down the afternoon’s testimony. John may be able to get you his transcript by the end of the day, and Mary has only three hours’ worth of materials to transcribe that evening, in order to get the transcript to you first thing the next morning. If you don’t let them know this, John has to stay in the courtroom all day. He then gets back to the office at 6:00 pm or so, with six hours’ worth of trial to transcribe. Do you enjoy staying up ’til the wee hours when you’re in the middle of a multi-day trial? Well, neither does John. Do it my way, and you get your transcript promptly, plus you get a more attentive reporter for Day 2, since he got a good night’s sleep.
5. Here’s the scene: You’re preparing for tomorrow’s scheduled two-hour hearing on a complex statute of limitations question. You’re going to cite to the judge four key cases, one of which is the little-known but dynamite case of Cowznafski v. Pastafalooza. You make three copies of the case – one to give to his Honor; one to grudgingly hand over to the Bad Guy, even though he doesn’t deserve it; and one for your own notebook. Have a heart; make a fourth copy, and give that to the court reporter. That will make her life easier because (1) she won’t have to remember to ask you how to spell Pastafalooza, and (2) when you start reading from the case, and read too fast (see below), she can look at her copy and be sure to get the wording down right.
At the trial
1. Slow down when reading. Studies show that 62.4% of Americans, and 100% of American lawyers, speed up when they’re reading from a prepared text. That’s because when you’re speaking extemporaneously, as we usually do while arguing a motion or responding to a question from a judge, there are actually two consecutive processes going on. First, your brain has to decide what you’re going to say. Only then do you actually start speaking. (This protocol is waived for teenagers and most college students, who spontaneously speak anything that comes to mind without considering whether it would or would not be a good idea to say that. They also start sentences with no clue of where the ultimate destination will be. But I digress.) This two-step process tends to slow your speech, as your mouth has to wait for your mind to conjure up just the right thing to say. But when the words are right there on the paper you’re holding in your hand, there is no governor on the accelerator pedal; you can go as fast as your lingual dexterity will allow you to form the syllables. Slow the hell down! Fast speech isn’t persuasive anyway; when a speaker wants to make a profound point, he slows down his speech for emphasis. (Try it.) The record for the fastest recorded speech by a public figure has been reported to be John Kennedy’s 327 words in one minute in 1961; professional “speed-talkers” reputedly have passed 600 WPM. You don’t want to go there; it makes for a mystified jury and a hopeless mess of a transcript anyway.
2. During breaks in the proceedings, approach the reporter and ask something like, “Do you need any spellings of anything?” Assuming your reporter doesn’t faint at receiving this remarkable courtesy, he will usually say yes, and ask you how to spell Pastafalooza, or the “bijillion” dollars you asked the jury in opening statement to award your client. This one is virtually guaranteed to endear you to even the most experienced, jaded reporters; they are not accustomed to meeting lawyers who care one whit about the court reporter’s lot in life.
After the trial
1. Order the transcript as soon as you perceive a need for it. This might even be during the trial; but if you conclude a few days later that you’ll need to appeal, go ahead and order it then. Don’t wait until that mandatory and jurisdictional 60-day deadline starts to approach. Rush jobs (a) are stressful for the reporter, (b) tend to produce a few more errors, and (c) cost you more.
2. The reporter will usually attach a bill to your copy of the transcript. You should pay that bill no later than the next day. Not in ten days; not 30 days; and certainly not after two nagging phone calls asking for payment. The next day. I learned long ago that the surest way to acquire the favor of any vendor is to develop a reputation as someone who pays his bills, not just promptly, but immediately.
ABOUT THE AUTHOR
L. Steven Emmert runs a private practice in Virginia Beach focusing exclusively on appellate advocacy in state and federal courts. He also serves as chair of the VBA’s new Appellate Practice Section. Mr. Emmert founded and runs the appellate Web site Virginia Appellate News & Analysis which provides same-day analysis of Supreme Court of Virginia and Court of Appeals decisions at www.virginia-appeals.com For more information regarding Appellate Practice Section and to join, visit www.vba.org.