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This article is part two of a two-part summary of an interview with four veteran court reporters who met with the author to discuss what they really think about the courtroom, judges, and lawyers. For ease of reading, and because all four agreed to talk so long as they were not identified by name, Judge Panter has combined their comments, but all the quoted text came from one of the court reporters.
Some of the complaints from the panel had to do with issues of common courtesy—acknowledging the court reporter as a person in the courtroom or conference room, asking after their needs, and treating reporters like professionals.
It’s sort of ironic because reporters have become so good that we don’t even think of them at times. Judges need to do better at attending to their needs and schedules.
Citations are sometimes difficult to get accurately. The panel suggested providing all citations to the reporter before your argument. “Cites are bad. They could just get their paralegal to bring a copy of the caption each time. They don't have to reinvent the wheel. Give the court reporter a caption, whether he wants a copy and the cites, any cites. Then when we try to Google we can find some.”
Don’t use reporters as quasi interpreters. Use trained interpreters for witnesses who need them—or risk creating an unusable record. It’s especially nasty when a witness varies between languages. Uniting Plaintiff, Defense, Insurance and Corporate Counsel to Advance the Civil Justice System “I tell them, either you're going to use the interpreter or not going to use the interpreter. Not for my convenience, just because the transcript is hard to understand and follow whether it's through the interpreter in English answering the question, third person, first person. I just...either you're going to or you're not going to. In the end, you're going to have such a messed up transcript you're not going to know what she understood in English, what she needed translated. It's very difficult. It's hard to understand until they get their transcript and then they are like, what?”
“I'm amazed at how the attorneys don't understand the interpreter process. I have to stop and say excuse me, you have to speak directly to the witness. Then when the interpreter answers it's the witness answering. They just keep doing it. It's a mess.”
Attorneys and Witnesses Behaving Badly
These veteran reporters have seen plenty of attorneys and witnesses behaving badly. It backfires—in part because arguing and fighting tends to create an unclear record:
“The control thing is the worst. The talking over each other. Getting into the conversation or arguing. I get a lot of those arguing cases. You just have to say hey, I can't take you all down. They're constantly cutting each other off. The attorney, the witness...it's just, it's frustrating. Some that really take control and they want to argue with the witness. Then you've got the opposing counsel trying to get in there. Sometimes it just gets too, too much.”
“A lot of times when the witness is an expert witness, they think they’re smarter than the attorneys. Instead of imparting his knowledge and his expertise and his expert opinions, he's fighting the defense and it looks so bad. It looks bad in front of the jury because then you're inclined to think is he lying and he's trying to prove his point. He thinks he's smarter. He comes off very bad. As opposed to an expert who is straightforward, forthright. They answer and it's just so much more smooth. Instead of just imparting their knowledge and explaining their opinions and being concise, they start to fight. It's horrible. Then the attorney will come back, they both are coming back at each other a little sarcastic. It's like really, you're going to do this in front of the jury?”
The mumbling witness, another headache. They mentioned the classic “um-hm” to make a larger statement about making a record. Their entire professional reputation rests on making an accurate record—and they are trained and willing to do everything possible to create one. But, in the end, these reporters were firm in their belief that it is the attorney who is ultimately responsible when the record is unclear:
“In the beginning you can remind them. Then sometimes the attorney will catch on and start reminding them. You don't know if they want you to interrupt. They may want the witness to look dumb, not answer, be vague. I had it in court yesterday. The witness kept saying mm-hmm, mm-hmm, mm-hmm. I was looking at the judge the whole time. Finally, the judge said you have to answer yes or no. But I have mm-hmm at least 5 times before that.”
“It's really hard because some of them are really so conversational. ‘Yeah, my uncle he works there. Do you...is he your dentist?’ Does that count? Do you want that in the record? It's really hard for us to judge. Okay, you're looking back at a transcript. Was that on? We don't really know. I think some attorneys don't . . . it's just so natural to them, ‘Oh yeah, this is just off the record,’ but they don't say it. Then we're sitting here typing then it's a mess. It's not even needed.”
“At some point, the lawyer has to take responsibility for his transcript. He's responsible. If the lawyer doesn't care, why should you?”
“I had a depo that did that through half the dep, [the witness saying] ‘uh huh, un uh.’ I said to [the lawyer] at a break, ‘You know, this is your case. I'll only say is that a yes or a no once. Then I'm going to think, she's taking the dep, she wants you to keep saying ‘uh huh, un uh’ because you're not saying the thing you should be saying. So I'm not going to interrupt.”
Moral for lawyers: a witness who doesn’t answer with a word leaves it up to the reporter to write it however she/he chooses. That can be really, really bad if it’s an important question. Maybe the reporter will get the word you want. Maybe not.
Going Off the Record
Another moral: if you want to go off the record, ask the judge first and be sure everyone agrees and gives the reporter a clear instruction. I can’t recall how many times I chuckled when a witness in open court would suddenly say, “But, off the record…” Or, when no reporter was present and a lawyer would say, “Judge, for the record…” I might reply, for the record, there is no record.
The reporters made it clear that no matter who hires the reporter, they see their job as taking down all the proceedings, not just the ones conducted by the attorney paying the reporter:
“In school we were taught do not go off the record until both sides agree. Often one just says, off the record and you kind of look like I hope it's okay we're going off. They don't always say...they barely ever say, ‘Yeah, I agree.’ They just do their thing but that's the way we were taught, don't go off until both sides agree.”
“As long as one person’s talking I'm going to write it down. I can always take it out. I can't get it back. I keep writing.”
I had this issue once as a lawyer when I wanted to continue questioning a witness and the opposing attorney told the reporter he had hired to stop writing and she did. Most reporters know better.
The Art of Transcription
Lawyers don’t understand the “art” of transcription, the judgment calls court reporters have to make in terms of punctuation and emphasis to try to capture as much meaning as possible. In some jurisdictions, such as some courts in Michigan, they use automatic voice directed microphones. (The only problem is, when one lawyer coughs during another’s closing, the microphone may switch.) But the basic problem is that reporting is an art, and a reporter makes many interpretations throughout the proceedings, no matter how hard the attorney tries to help.
“So much of what you understand when someone is speaking is the inflection of the words that you use. When you have words written out in letters, you can't do that. It's so hard to convey that understanding that you get through the inflection of your voice when you have it on paper.”
“It's the punctuation, and the faster they speak the less punctuation we can put in. We have to do that later. That means that we're listening again and seeing what goes with what. I think attorneys think we go and press a button and print at the end and we're done. Which it's not at all. You have to go back through your transcript. Hours and hours. You have to put your punctuation in. There's a lot of refining you do to transcripts.”
“When they speak that quickly, I feel like we're doing more interpreting of what the witness said because at the time we can't put the period. Where did the thought end? We might not get it all.”
Reporters struggle with time issues. For example, deposition time can be subject to court ordered time limits, meaning both sides are constantly worried about not going over the court’s limits. The panel felt strongly that this time-keeping job was the attorney’s, not the court reporter’s:
“They'll say, did you make a note of what time this started? No. You should. Or a break—when we come back you say, let the record reflect. You do that, the counsel. That it is whatever date, time. Then I'll write it.”
Be Kind to Your Court Reporter!
Near the end of our session, I asked the panel how lawyers can make their court reporter happy (and, hopefully, improve the quality of the transcript). The answer: kindness, courtesy, and thoughtfulness go a long way:
“The happiest reporter is when the judge or the attorney is really considerate of the reporter. Whether it's understanding they're tired or little things, like not talking over each other. When they are considerate or even if they say your name. When they say, if you need a break, we can take a break for you too. When they take the time to say ‘oh, nice to meet you,’ and they really treat you as a person instead of a machine.
“A lot of the judges will ask the reporter, ‘Do you need a break? Are you okay?’ That's really nice. It makes your experience, whether it's in court or in a deposition, much more pleasant.”
We have Law Day. We have Secretary’s Day. Trial lawyers should treat every day as Court Reporter’s Day!