As published in TIPS (Tort Trial & Insurance Practice) Committee News, ABA
This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Four of my veteran court reporters met to discuss what they really think about the courtroom, judges and lawyers. They didn’t hold back!
Below is a summary of our interview. For ease of reading, and because all four agreed to talk so long as they weren’t identified by name, I’ve com-bined their comments—but all the quoted text was said by one of them.
We began talking about what directly impacts a court reporter’s ability to create a record.
This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.
Four of my veteran court reporters met to discuss what they really think about the courtroom, judges and lawyers. They didn’t hold back!
Below is a summary of our interview. For ease of reading, and because all four agreed to talk so long as they weren’t identified by name, I’ve com-bined their comments—but all the quoted text was said by one of them.
We began talking about what directly impacts a court reporter’s ability to create a record.
Voir Dire
Voir dire can be a nightmare for court reporters: “We want an accurate record at all stages of the proceedings, but some phases, like voir dire, can be critically important on appeal. Every judge does it differently and you don't know what you are walking into. Jury selection is typically brutal for reporters. When there are multiple people sitting in the jury [box], you address them by panels and then you ask an individual juror a question but you don't mention his name? We're trying to remember, okay, this is the plumber from the south side or this is the electrician from the north side. If you would just say ‘Mr. Jones, what is your opinion about this.’ It's hard to remember who people are. We don't always get the chance to make a seating chart because we don't always get the names when they come in.”
“Then they'll question the panel but then they'll be, ‘Oh, has anyone ever been in the hospital?’ and then juror number 12 is answering but you don't remember juror number 12's name. Ideally, the reporters would really like to have the juror’s potential name but then they're moving out, they're moving in. They are going back. All you can do is put unknown juror, potential juror.”
“[The attorney asks] wherever they work, wherever they went to school and they mumble some name. The attorney will nod like they really understand. And they don't. They think, I'm going to get this from the court reporter.”
“If a juror is way on the other side of the courtroom, we can't hear them. If an attorney is not hearing that means probably that we are not hearing. They can't assume that we're hearing it.”
Sidebars and Witnesses Out of the Box
Sidebars—another trap for the reporters. When attorneys and judges are making arguments, preserving an accurate record is extremely important—but the reporters are sometimes the last to know what’s happening.
“Sidebars when everyone's whispering because they don't want the jury to hear. You say excuse me, I can't hear. There are words left out sometimes in sidebars because I don't hear them.”
How about when the witness leaves the stand, for a demonstration?
“We do read lips. You're fixated on their lips.” The reporters agreed: when the witness is anywhere other than in the witness box, either make sure the witness faces the court reporter, or allow the reporter to move in or-der to see the witness’s face.
Phone Depositions
Then we have phone deps. How do you create an accurate record with only audio? Lawyers forget that speak-er phones are voice-activated. When one is speaking, another may not get picked up by the speakerphone. In a phone dep, the usual thing with lawyers talking over each other is likely to result in a flawed record, with ar-guments attributed to the wrong advocate:
“I put ‘multiple voices’ in the transcript. Or you take down the loudest person yelling, and you put a parenthe-tical, multiple voices.”
Accents
Another problematic aspect of making a record: witnesses with heavy accents.
“Somebody with an accent, it's a doctor from a foreign country who you don't know what they're saying. Then, then they're asking you to read back as if you should know what they're saying but they don't want to be inter-rupted. They don't want their flow to stop. A lot of times the attorneys are annoyed if reporters interrupt and they'll complain. They don't realize that if we don't get it, you'll never see it again.”
All agreed: it’s up to attorneys to be conscious of the record at all times, including the reporter’s ability to un-derstand the witness and what is being said.
Lawyers’ Responsibility for Making a Record
As a judge, I didn’t feel it was my job in a civil trial to intervene to help the lawyers be sure they had a good record unless I thought it was a really key point that might be challenged on appeal. For example, a Batson ruling or a Daubert issue. Other judges feel differently and intervene freely.
Reporters are exasperated by lawyers who don’t simplify their language, and who use lots of legalese.
“I look at the jurors a lot. I see that they don't understand the legal language and the attorneys forget that they're speaking to lay people. The really good attorneys speak like they're on the street and they speak where the jury understands them. That's one thing I noticed a lot of attorneys don't do. I know they have to explain, it's hard to explain to the jury especially if it's medical or something. I think they overthink it. I think they take it a little too far. Give a little more than the jury needs or wants to know. I think they turn off after a while. Es-pecially in openings and closings. You can see it kind of go. You can see the jurors faces. They're not getting it.”
Even jury instructions can be complicated. “[W]hen you read the jury instructions, some judges, they really are flying through there close to 300 words a minute, 250. You can see the jury trying to listen, this is what they're supposed to do. These are your instructions. Then by page 4 of that, they are just glazed over.”
Millennialspeak
Here’s a big surprise: attorneys talk too fast, allow witnesses to talk too fast, and don’t take proper care to make a clean record because of all this speed. The reporters claimed that attorneys and witnesses will talk as fast as 400 words per minute, but many court reporters can only take down the proceedings at 225 words per minute—and so a lot of words go unreported, and those that are captured are garbled. The panel was particu-larly pained by younger, Millennial attorneys:
“I think they all speak so fast, and they don't seem to care. It's like okay we'll just, you can deal with that part later. You have your audio. We're not machines. We are there and we are humans, we're not machines.”
“When I first started reporting, you could tell attorneys were very articulate. They stopped. Doesn't it sound like a Millennial: ‘Like, like...when...so then...well, let me ask you this. Strike that. You didn't write that did you?’ The Millennials are the ones that talk fast.”
Millennials came in for criticism, too, for a more “conversational” style, remarked upon by several of the group. (Note to young advocates: long rambling deposition answers are not much use to you in impeachment at trial!):
“You would think they were talking to their college buddy because it is just...conversational. It doesn't sound like Raymond Burr. They don't even know who Raymond Burr is [for my Millennial readers, Burr played legend-ary lawyer Perry Mason].”
“I've even had attorneys say this, ‘My style is conversational and I like it because then I just let the witness just keep talking and talking and talking.’ The transcript turns out like nonsense half the time. It's not my transcript but it's hard for us to take it down. It's an answer with 10 dashes in it. It's really nasty. Then you feel like you're really interpreting what this witness is trying to put forth. Punctuation does make a difference, where you put it. Especially when they're interrupting themselves. They're rambling and rambling and you have to know where to cut it off. What part of the sentence goes with the one before it and what after? You are interpreting. You have to be careful not to change the meaning. It’s hard.”
Doctors
The testimony of doctors was cited as particularly difficult to take accurately. “It's hard when doctors just read from their notes. Even the attorneys have all their questions listed out and so they just bam, bam, bam, bam, bam. They have it all written out and they barely can spit it out in time. Well if you're not saying the final word, I can't make it up. Then it doesn't look good. It's hard when they're reading. Or they skip words until then you think, oh, they didn't say it. You know they didn't say it, you're not going to put it in the transcript but you know when the attorney gets the transcript they are like ‘oh, she missed a word.’ They might doubt the report-er but a lot of people don't read stuff word for word that's on the medical records or documents or stuff that they provide.”
Background Noise
Another complaint from my panel: noise. Especially noise from the court clerk!
“You're in court for a motion and the clerk is cha-chang, cha-chang, cha-chang! You can't hear over that stamp. You cannot hear. I don't care what anybody says, you cannot hear over her stamp because you are sitting on the witness box, she's on the other side. The attorneys are at the bench and your microphone is probably somewhere up in front or between the trays and when she's stamping, you're not hearing it. All you'll hear in audio play-back is ‘stamp.’ There's 50 attorneys in the room doing motions. They're all going up there to get their orders stamped. If you had to do a fundraiser for [the courthouse] it would be to get new quiet rubber stamps for the clerks.”
I can relate to this. I would ask clerks to do their stamping in chambers, but their rules require them to sit in the courtroom. At least hold the stamping when a witness is soft spoken or breaking down.
The court reporters had much more to say . . . stay tuned for part two of this article, where court reporters will address, among other things, common courtesy, mumbling witnesses, and going off the record.
Click here to go directly to Part 2.
Voir dire can be a nightmare for court reporters: “We want an accurate record at all stages of the proceedings, but some phases, like voir dire, can be critically important on appeal. Every judge does it differently and you don't know what you are walking into. Jury selection is typically brutal for reporters. When there are multiple people sitting in the jury [box], you address them by panels and then you ask an individual juror a question but you don't mention his name? We're trying to remember, okay, this is the plumber from the south side or this is the electrician from the north side. If you would just say ‘Mr. Jones, what is your opinion about this.’ It's hard to remember who people are. We don't always get the chance to make a seating chart because we don't always get the names when they come in.”
“Then they'll question the panel but then they'll be, ‘Oh, has anyone ever been in the hospital?’ and then juror number 12 is answering but you don't remember juror number 12's name. Ideally, the reporters would really like to have the juror’s potential name but then they're moving out, they're moving in. They are going back. All you can do is put unknown juror, potential juror.”
“[The attorney asks] wherever they work, wherever they went to school and they mumble some name. The attorney will nod like they really understand. And they don't. They think, I'm going to get this from the court reporter.”
“If a juror is way on the other side of the courtroom, we can't hear them. If an attorney is not hearing that means probably that we are not hearing. They can't assume that we're hearing it.”
Sidebars and Witnesses Out of the Box
Sidebars—another trap for the reporters. When attorneys and judges are making arguments, preserving an accurate record is extremely important—but the reporters are sometimes the last to know what’s happening.
“Sidebars when everyone's whispering because they don't want the jury to hear. You say excuse me, I can't hear. There are words left out sometimes in sidebars because I don't hear them.”
How about when the witness leaves the stand, for a demonstration?
“We do read lips. You're fixated on their lips.” The reporters agreed: when the witness is anywhere other than in the witness box, either make sure the witness faces the court reporter, or allow the reporter to move in or-der to see the witness’s face.
Phone Depositions
Then we have phone deps. How do you create an accurate record with only audio? Lawyers forget that speak-er phones are voice-activated. When one is speaking, another may not get picked up by the speakerphone. In a phone dep, the usual thing with lawyers talking over each other is likely to result in a flawed record, with ar-guments attributed to the wrong advocate:
“I put ‘multiple voices’ in the transcript. Or you take down the loudest person yelling, and you put a parenthe-tical, multiple voices.”
Accents
Another problematic aspect of making a record: witnesses with heavy accents.
“Somebody with an accent, it's a doctor from a foreign country who you don't know what they're saying. Then, then they're asking you to read back as if you should know what they're saying but they don't want to be inter-rupted. They don't want their flow to stop. A lot of times the attorneys are annoyed if reporters interrupt and they'll complain. They don't realize that if we don't get it, you'll never see it again.”
All agreed: it’s up to attorneys to be conscious of the record at all times, including the reporter’s ability to un-derstand the witness and what is being said.
Lawyers’ Responsibility for Making a Record
As a judge, I didn’t feel it was my job in a civil trial to intervene to help the lawyers be sure they had a good record unless I thought it was a really key point that might be challenged on appeal. For example, a Batson ruling or a Daubert issue. Other judges feel differently and intervene freely.
Reporters are exasperated by lawyers who don’t simplify their language, and who use lots of legalese.
“I look at the jurors a lot. I see that they don't understand the legal language and the attorneys forget that they're speaking to lay people. The really good attorneys speak like they're on the street and they speak where the jury understands them. That's one thing I noticed a lot of attorneys don't do. I know they have to explain, it's hard to explain to the jury especially if it's medical or something. I think they overthink it. I think they take it a little too far. Give a little more than the jury needs or wants to know. I think they turn off after a while. Es-pecially in openings and closings. You can see it kind of go. You can see the jurors faces. They're not getting it.”
Even jury instructions can be complicated. “[W]hen you read the jury instructions, some judges, they really are flying through there close to 300 words a minute, 250. You can see the jury trying to listen, this is what they're supposed to do. These are your instructions. Then by page 4 of that, they are just glazed over.”
Millennialspeak
Here’s a big surprise: attorneys talk too fast, allow witnesses to talk too fast, and don’t take proper care to make a clean record because of all this speed. The reporters claimed that attorneys and witnesses will talk as fast as 400 words per minute, but many court reporters can only take down the proceedings at 225 words per minute—and so a lot of words go unreported, and those that are captured are garbled. The panel was particu-larly pained by younger, Millennial attorneys:
“I think they all speak so fast, and they don't seem to care. It's like okay we'll just, you can deal with that part later. You have your audio. We're not machines. We are there and we are humans, we're not machines.”
“When I first started reporting, you could tell attorneys were very articulate. They stopped. Doesn't it sound like a Millennial: ‘Like, like...when...so then...well, let me ask you this. Strike that. You didn't write that did you?’ The Millennials are the ones that talk fast.”
Millennials came in for criticism, too, for a more “conversational” style, remarked upon by several of the group. (Note to young advocates: long rambling deposition answers are not much use to you in impeachment at trial!):
“You would think they were talking to their college buddy because it is just...conversational. It doesn't sound like Raymond Burr. They don't even know who Raymond Burr is [for my Millennial readers, Burr played legend-ary lawyer Perry Mason].”
“I've even had attorneys say this, ‘My style is conversational and I like it because then I just let the witness just keep talking and talking and talking.’ The transcript turns out like nonsense half the time. It's not my transcript but it's hard for us to take it down. It's an answer with 10 dashes in it. It's really nasty. Then you feel like you're really interpreting what this witness is trying to put forth. Punctuation does make a difference, where you put it. Especially when they're interrupting themselves. They're rambling and rambling and you have to know where to cut it off. What part of the sentence goes with the one before it and what after? You are interpreting. You have to be careful not to change the meaning. It’s hard.”
Doctors
The testimony of doctors was cited as particularly difficult to take accurately. “It's hard when doctors just read from their notes. Even the attorneys have all their questions listed out and so they just bam, bam, bam, bam, bam. They have it all written out and they barely can spit it out in time. Well if you're not saying the final word, I can't make it up. Then it doesn't look good. It's hard when they're reading. Or they skip words until then you think, oh, they didn't say it. You know they didn't say it, you're not going to put it in the transcript but you know when the attorney gets the transcript they are like ‘oh, she missed a word.’ They might doubt the report-er but a lot of people don't read stuff word for word that's on the medical records or documents or stuff that they provide.”
Background Noise
Another complaint from my panel: noise. Especially noise from the court clerk!
“You're in court for a motion and the clerk is cha-chang, cha-chang, cha-chang! You can't hear over that stamp. You cannot hear. I don't care what anybody says, you cannot hear over her stamp because you are sitting on the witness box, she's on the other side. The attorneys are at the bench and your microphone is probably somewhere up in front or between the trays and when she's stamping, you're not hearing it. All you'll hear in audio play-back is ‘stamp.’ There's 50 attorneys in the room doing motions. They're all going up there to get their orders stamped. If you had to do a fundraiser for [the courthouse] it would be to get new quiet rubber stamps for the clerks.”
I can relate to this. I would ask clerks to do their stamping in chambers, but their rules require them to sit in the courtroom. At least hold the stamping when a witness is soft spoken or breaking down.
The court reporters had much more to say . . . stay tuned for part two of this article, where court reporters will address, among other things, common courtesy, mumbling witnesses, and going off the record.
Click here to go directly to Part 2.