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“How much time do you have?” laughs Doris Pfeiffer, a reporter with approximately 23 years experience. There are many players in the judicial system, but few are as overlooked by the others as court reporters. Judges wield considerable power and influence, the attorneys play off one another, and the clients pay the bills. The reporter sits alone. Cheri Laman, part owner of Q & A Court Reporters, Inc. in Eau Claire, Wisconsin, admits that as a court reporter she prefers to remain part of the woodwork. “I didn’t become a court reporter to talk,” she says.
However, Laman and thousands like her play a vital role in many court proceedings or depositions. That’s the most important thing for practitioners to remember, says Pfeiffer. “Remember we’re there, and our job is to preserve the record.” In a newsletter article for the Texas Court Reporters Association, Texas Supreme Court Justice Deborah Hankinson writes about preparing an appeal in a case where the taped audio record of the proceedings had failed to pick up approximately 50% of certain “mandated bench conferences.” Having a record of these conferences “was critical because it was obvious from the context of the rest of the proceedings that what transpired at the bench was important to our case.”
Justice Hankinson managed to preserve certain issues for appeal in her case. Other parties are not so fortunate, and find their transcript riddled with “inaudible” references at critical moments. Or what they thought were clear answers to their questions are actually lost in a dizzying maze of overlapping and disjointed remarks by a chorus of parties. Most court reporters contend that a few simple steps not only make their job easier, but more importantly, make the record clearer.
“We don’t make the record,” says Mary Burzynski.“Attorneys make the record, we keep it. If they’re not doing their job, we can’t do ours.” These are a few practical tips to avoid appearing inarticulate and ineffectual in print.
Speak Clearly, Forget About the Stick
If they can’t hear you, all the clever questions in the world end up as “inaudible” in a transcript. Michael E. Miller, a freelance reporter in the Dallas area, defines getting beaten up as “what illiterate witnesses and inarticulate attorneys do to court reporters.” Court reporters are generally reluctant to interrupt an attorney or a witness to ask that they speak up for fear of disturbing a train of thought. In fact, Mary Burzynski says that while “anger may be too strong a word” to describe attorneys she has interrupted, they are often ““put out” by it. Why? “They don’t want to spoil the flow.”
Even when attorneys are apologetic, it doesn’t always last. “If a judge asks them to speak up, they stay more aware of what they’re doing,” says Laman. “If I mention something, they’re so focused that a few minutes later they’re right back doing the same thing.” The worst offenders are attorneys who talk too fast or too softly (didn’t your mother tell you not to mumble?). Laman says she’s never had to ask an attorney to be quiet. Even when the parties are yelling at each other, her only concern is that she might “miss something” in the testimony.
Read It, Don’t Eat It
People often launch into overdrive when asked to read something from a written document. Laman says it’s not really the speed that’s the problem, but that when people talk so fast they don’t speak as clearly. “Don’t mumble. Slow down and enunciate those words.” Another option is to provide the reporter with a copy so that they can check their notes against the document. Lynn Brooks, author of The Deposition Handbook, writes of an attorney who actually provided a special set of confidential exhibits specifically for the reporter. They could be referred to during transcription, and then destroyed. According to Brooks,this attorney “had the best grasp of reporter problems of any attorney I’ve ever met.”
Shop Talk is Great if You Know the Lingo
Code words aren’t limited to the military or teenagers. Virtually every profession has its own specialized terminology. This is especially true of doctors, and for most court reporters medical depositions can be among the most difficult. Pfeiffer says that ““big or complicated cases” pose problems for reporters simply because they come in unaware of the specialized lingo the witness may use. “Plus, in medical malpractice cases there are many similar terms” that can throw a reporter off during transcription.
For example, what on earth is hydroxyacetyl-aminofluorene? According to Miller, it’s not just a term he put on his website or his Depoman T-shirts. “It all stems from the depo I had the misfortune of taking of an industrial chemist who could say ‘that word’ like it was one syllable,” he says.
Each issue of the Journal of Court Reporting devotes numerous pages to technical terms, jargon, and acronyms from various fields. For example, did you know that BITE stands for Built-In-Test Equipment or that CDR could be a reference to either Continuous Data Recording or Critical Design Review? According to the April 2000 issue of JCR, these are standard aviation acronyms. Then there are factitious disorders, folie a deux, eidetic image, dyscalculia, dysphoria, or hyponophobia (all of which are “common psychology terms,” says the January 2000 issue of JCR). They are also phrases court reporters might encounter without warning in the middle of a deposition.
The problem is that when it comes time to prepare that transcript (overnight, of course), court reporters are often at a lost for how to properly display industry jargon, medical terms, legal citations, or even proper names. The solution? Pfeiffer suggests a “crib sheet” or word index that could be given to the reporter in advance. Sheila Atkinson-Baker, president of Atkinson-Baker, Inc., writes that attorneys could also let the reporting agency know that a deposition might call for expertise with particular terminology. Even simply having the witness spell, define, or otherwise explain such specialized terms would go a long way in clarifying the record, not only for the court reporter but anyone else who might be required to read the transcript.
Put It On Paper or It Won’t Get There
Lots of things get lost in the transition to paper. For example, body language or gestures cannot be recorded. The National Court Reporters Association’s Making the Record brochure suggests that a simple phrase like “let the record show” can easily clarify every gesture a witness might make. Mary Burzynski concurs, and suggests that too often an attorney will simply hand a witness a document, point to it, and say “You mean this here?”
In normal conversation, people routinely talk over, around, or through one another. Unfortunately, transcripts of such conversations are awkward and difficult to read. Laman says that she often sees situations where an attorney will begin a question, the witness will interrupt with an answer, and the attorney will finish the question as though there was no interruption. The reporter’s task is to transcribe the testimony in chronological fashion, however, so the answer dangles uncomfortably on the page. “It bothers me,” she says. “It doesn’t read well, but I don’t have a choice.”
She recommends that attorneys work with their clients to avoid such situations. Mary Burzynski offers a practical reason for reminding a witness to wait until the question is completed. “An attorney might change the question” to fit the answer that has already been given, she says.
Another problem arises when there are multiple parties, especially if the proceeding is conducted by telephone. In such instances, it is difficult to determine which party is speaking. As a result, reporters often recommend that attorneys identify themselves each and every time they speak. Doing so “helps ensure a clean record,” according to the NCRA’s Making the Record brochure.
Cheryl Harmon, a court reporter with twelve years of experience, points out another common aspect of conversation that does not transfer well into a written transcript. “Some attorneys never finish their sentences,” she says. “They stop halfway through. It reads choppy, but there’s not much we can do to make it look like they knew what they were saying.”
Everything Takes Time
The press of modern life and the conveniences of technology encourage rush demands. In some cases, the necessity is real. And most court reporters don’t mind turning a transcript around overnight – if they get advance warning. The problem comes in when an attorney concludes a deposition, looks up, and asks to have a copy in the morning. “It’s nice to know they need it the next day beforehand,” says Harmon.
Burzynski says it is common practice for reporters to ask whether the project is a rush when the deposition is scheduled. Unfortunately, many attorneys don’t let their staff know, so it cannot be communicated to the reporters. “They’ll often say we should ask when we get there,” she
says. “That’s too late.” According to Harmon, if they know in advance that it is a rush project, most firms can schedule reporters to accommodate the need. Otherwise, the reporter who shows up may have a job the next day in another location, be planning to leave on a long-scheduled vacation, or otherwise be unavailable for such a rapid turnaround.
Pfeiffer notes that many attorneys seem to think reporters “can press a button and it’s done.” The advent of real-time reporting, where parties can see the transcript as it is recorded, has only added to this perception. Most reporters “strive to be accurate,” she says. As a result, they prefer to review and correct any typographical errors in the transcript. Despite the computerization of
reporting, that process can still take time.
What types of errors can occur? There are of course the difficulties associated with obscure terms or special terminology. But even a single keystroke can mean the difference between various alternate words or meanings. In fact, real-time reporting can be a significant culprit in
this regard. The January 2000 issue of JCR highlighted the challenges of real-time captioning a message from Pope John Paul II. The software generated conflicts between such words as “thy” and “thigh,” “canon” and “cannon,” “throne” and “thrown,” and perhaps most disconcertingly, “Jews” and “juice.”
The article also highlighted bloopers in other realtime presentations, such as the coverage of debate on an affirmative action bill where one speaker’s comments about racism and sexism appeared on screen as “racism and sex itch.” All reporters want to be accurate and avoid such
mistakes, says Pfeiffer. As a result, they’re reluctant to hand over a “dirty” copy of the transcript or rush a project unless it really needs the rapid turnaround.
Most court reporters are really looking for two simple things: understanding and respect. They want attorneys to understand that their job is to keep the record, not make it. A clean, legible transcript ultimately depends upon the attorneys’ ability to make an effective presentation. They also want attorneys to respect the fact that their job is to be accurate and impartial. As Cheri Laman says, the two best ways to improve the transcript of any proceeding are “speak clearly and don’t interrupt each other.” Do that and you won’t just make the court reporter’s day. You’ll make your record.
Sidebar: Action on the Sidelines
Court reporters are often part hostage and part interested observer (most reporters have lost count of the number of times “two minutes” of promised questioning turned into two hours). As Linda Fisher writes in the May 2000 issue of the Journal of Court Reporting, they “do not have to be responsible for making decisions on behalf of a client, or to take a stand as to who is wrong or right – perfect for someone who would rather stay uncommitted.” Sometimes, however, they get more involved in the proceedings than they like.
According to Mary Burzynski, one of her worst experiences was also a common one – when an attorney asked that she read back a question. It occurred during a deposition in a sexual harassment lawsuit. One attorney asked the defendant to describe the things he had said to
the plaintiff. The defendant obliged, uttering a “gross and disgusting answer.” Approximately an hour later, another attorney began questioning the defendant, and decided he needed to hear the earlier answer. “Please read it back,” the new attorney said. After many frantic minutes while a
roomful of attorneys and litigants waited for her, Burzynski had to concede defeat – “I knew what he said, but I couldn’t find it.”
On some occasions, the reporter’s efforts to clarify the record may even interfere with an attorney’s litigation strategy. Cheri Laman recalls a situation in which a defense attorney in a rape trial stood with his back to the bench during his closing argument. He whispered a few comments to the jury that Laman could not hear, and she repeatedly asked him to speak up. “Afterwards, he was angry with me,” she says. “He said that if I couldn’t hear him, I should have simply written ‘inaudible.’ But what he was saying he didn’t want the judge to hear.” The judge, as it turns out, was hard of hearing.
As a general rule, court reporters strive to be impartial. Sheila Atkinson-Baker writes that reporters are on the side of “smooth and swift administration of justice.” But on occasion they have a difficult time keeping their personal feelings out of sight. In the April 2000 JCR’s
Tales of the Transcript, a reporter named Julianne Eberl relates how she burst into laughter during a lengthy deposition when the witness finally revealed that she had supposedly slipped on a piece of broccoli in a drug store. “After seven hours of excruciating questions, the existential incongruity so overwhelmed me that I began to laugh uproariously.”
Ms. Eberl received a reprimand by her boss for interjecting herself into the deposition. Cheri Laman admits that there are times when she has had a difficult time avoiding laughter as well. On the other hand, there are times when the testimony stirs other emotions. Laman recalls a series of depositions involving the parents of a carload of teenagers who died in an accident. All of the parents broke down during their testimony, and Laman says she “nearly turned purple trying not to cry.”
About the Author
William E. Wallo is an attorney and freelance writer. He graduated with highest honors from law school in 1992 and presently serves as law clerk to a federal bankruptcy judge. His writing credits include a number of articles on commercial law, bankruptcy, and litigation.