Discretion, please!!!

Every now and then while on the subway, I will see a court reporter proofreading a transcript.  I can’t help but cringe.  The particular reporter I saw this week was standing, red pen in hand, probably hoping to make good use of her valuable time.  What bothered me, however, was the fact that a woman was reading the transcript over her shoulder.  Thank goodness she didn’t pull out exhibits such as tax returns or medical records to review.

Another practice that I find frightening is when reporters put transcripts and accompanying audio on Facebook.  While the names of the parties or those present at the proceedings may not be visible on the screen shot, this is still a very bad idea.  As you know, information on Facebook can spread like wildfire.  It may not actually go viral, but in a world getting smaller by the minute, it’s not too far-fetched to imagine that that post can find its way back to someone who recognizes the voice on the audio or even to the very person himself.

Call me paranoid, but these are not risks I am willing to take.  Testimony reported in any setting is confidential and should not be put out for public viewing under any circumstances.  I wouldn’t want a phone call from a client who discovered that his words were online because of me.  If you were embroiled in litigation, would you want your private matters out there for public viewing?

I heard of an instance where a reporter gave her opinion about an important case on Facebook.  This called into question her neutrality and professionalism, and it landed her a meeting before a judge where she was promptly fired.  Improper behaviors have consequences.

Discretion is a quality possessed by every professional, but I think that court reporters particularly have a duty, as officers of the court, to be extra careful in this regard.  Be mindful of how you handle yourself professionally.  More people are watching than you may realize. 

Court Reporting Myths

All court reporters are the same.

We may all seem the same at first glance, sitting at our machines with our fingers flying, but we all know that among our members there is a wide range of abilities and experience.  So how does one know that a reporter has the core competencies required to produce a timely verbatim transcript, or how does one know if the court reporter can provide realtime?   The standard determinant in our business has always been the credentials earned through NCRA:  RPR, RMR, RDR, CRR, and CRC.  It may not be the only factor — and there are some members who consistently perform at a high level without the top credentials — but it is the one that carries significant weight among its members.

Court reporting is easy.  All you have to do is push a button to get a transcript.

Were it so!  True, there are gifted reporters out there who can consistently produce very clean transcripts by the end of the day, but they are in the minority.  Among NCRA’s membership of 11,495, only 1,864 hold the RMR; 486 hold the RDR; and 2,478 hold the CRR (as of February 2018).  Court reporting is stressful and difficult, but they make it LOOK easy. 

Longer words are harder to write than short words. 

With the emphasis on writing “short,” this does not hold true anymore.  Multisyllabic words used to be the nemesis of reporters, but savvy reporters have changed their writing styles to incorporate shortcuts for long words, word groupings, common phrases, and numbers.  In addition, they have learned to come up with creative briefs on the fly.  Carol Kusinitz, a reporter extraordinaire who routinely does this, came up with the brief CRUPL* for “cryptococcal meningitis.”  This practice not only cuts down dramatically on misstrokes but saves wear and tear on your hands and fingers which is crucial when considering a career that can last decades.

I can earn $100K at the completion of just a two-year court reporting program!

Earnings for beginning reporters do not even approach $100K.  This is certainly attainable but only after years of experience in the field.  The higher the credentials one has usually correlates with the more lucrative assignments, so it certainly is an incentive to improve your skills.  Secondly, many students do not graduate in two years.  To think that you will definitely finish in two years and then start immediately earning $100K is a fairy tale.

Court reporting is a boring job.

Yes, there are times when you are bored to tears, but court reporting can also be very exciting.  You will be privy to private and confidential matters, contentious and controversial matters, sometimes matters covered by the local and national media, and you will be exposed to topics from every field imaginable.  It is a “free” education, there for the taking. You will meet people from all walks of life and gain perspective on human nature.  Reporting also offers you the opportunity to travel nationally and around the world!  Reporters from this office have reported in Italy, Cyprus, Sweden, and Mongolia, to name a few.

Court reporters can make their own hours.

If only this were true.  Freelancers may have more flexibility, but all reporters are at the mercy of their backlogs and their clients’ wishes.  When a transcript is needed on an expedited basis, it needs to get delivered on time.  Everyone has a million stories.  I remember attorneys ordered an expedited transcript from me on Christmas Eve.

I have audio, so I can just sit back and enjoy the ride.

I don’t know of one professional reporter who subscribes to this.  There is always the possibility that your audio could fail, often at the absolute worst time.  If you didn’t hear it to begin with, it’s possible it won’t be picked up by the audio.  You are there to safeguard the record and must do everything in your power to prepare the best transcript you can.  Interrupt for clarification if necessary, and always work on improving your skill and speed so you don’t need your audio backup as a crutch.

A tape recorder can do your job.  You probably hear this one a lot.  I don’t even want to go there.  We all know the truth.

IF…

This one little word became a matter of contention between the parties in a lawsuit, and our reporter was at the center of the dispute.

This reporter has 40 years’ experience and has earned several NCRA credentials, but this little word got by her.  She did not hear the “if” in the witness’s answer.  She produced a rough and subsequently produced a 200-page final transcript, both of which did not contain the “if.” 

IFCounsel called and asked that she check her notes.  He just noted the page and line number he was concerned about and did not suggest what he was looking for in particular. 

Obviously the “if” was not in her notes; but after she checked the audio, she realized that indeed the “if” was missing in the answer.  This changed the meaning of the answer.  We notified opposing counsel of the error, and of course he disputed this newfound information.

After several phone calls and emails back and forth, the matter was thankfully resolved.  Our reporter obviously made an error, since the “if” was clearly heard on the audio.  There really was no dispute as to what the correct answer should have been.  Corrected transcripts and electronic files had to be resent to all involved.

This reminds me of another very experienced and qualified reporter, an RDR, who was challenged because of the word “a” in her transcript.  I forget the specifics of this example because it happened quite awhile ago. 

The point of all this is that sometimes it’s the smallest of words that can cause the biggest problems.  Think of all the words the reporter correctly took down that day, 200 pages worth.  She missed just one, but it was a very consequential one.  If it can happen to her, an RMR, CRR, it can happen to anyone. 

As students, you are acutely aware of this.  Each time you miss a word during testing, however small, it counts as an error.  In a testing situation the word “if” carries the same weight as a multisyllabic word. 

Of course we are only human and mistakes do happen.  Unfortunately in our line of work, it’s our mistakes that jump off the page, not the thousands of words we write correctly.  Unbelievably, on very rare occasions, 99.999 percent accuracy is sometimes not good enough.

To further emphasize just how critical the little words can be, please take a moment to read the article about a capital murder case that got rejected by the Supreme Court due to a discrepancy between the words “may” versus “must.”

Shadowing a Reporter Too Soon is Counterproductive

There are two schools of thought on this issue.  Some believe that sitting out with a working reporter at any speed is helpful.  I personally feel that you shouldn’t shadow a reporter until you have passed your 200 Q&A. 

The purpose of shadowing a court reporter is to familiarize yourself with the job, but it also should serve as a gauge of where you currently are and where you have yet to go.  If you sit out after you’ve passed your 200s, it will be a more realistic test of your abilities. You still have to pass your 225s to earn your RPR, and those extra 25 wpm are the hardest to attain!  Further, any reporter will tell you that even 225 wpm just doesn’t cut it on many days.  The gap between 180 and 225 is a big one, and sitting out at that speed would be discouraging.  Your time would be better spent practicing.

When you are ready to sit in with a reporter, you should have the mindset of putting yourself in the reporter’s place and envisioning that YOU are the reporter of record.  Learning how to swear in witnesses, mark exhibits, note stipulations, etc., is the easy part.  The hard part is creating a record.  Pretend that you are there alone.  Can you keep up?  Would you have to interrupt often?  How are you handling colloquy, the arguing, the frequent readback?  In short, would you be able to prepare a quality transcript of the entire proceedings?

Working reporters enjoy taking students out and sharing their knowledge.  This is a perfect setting to learn what you don’t in the classroom:  the reporter’s routine, tricks of the trade, use of technology.  Maybe your reporter is writing realtime for the attorneys and has provided iPads to all counsel.  You will be amazed and inspired to witness this live!  Take advantage of this special opportunity to ask your questions and get tips on what you need to do to improve.

I still remember vividly sitting out as a student.  The attorneys were always gracious, allowing me to sit in on what are always considered confidential matters.  I was grateful; they could have refused my attendance, but it was never an issue.  I was allowed a front-row seat, but I tried to be as unobtrusive and respectful as possible.  What I most remember was trying to keep up.  My fingers were still moving long after the reporter’s fingers had stopped.  I soaked it all in and took something away from every session.  Lastly, I always took a moment to thank the reporter and the attorneys for the opportunity.

Shadowing a reporter is a great experience, but it should be saved for when you are close to approaching the finish line.  At that point you’ll have more practice time under your belt and a better chance of success.  If you are not quite there yet, keep putting in as much quality practice time as you can.  Your turn to shadow a reporter will come.  I wish you all a productive learning experience out in the “real world”!

Ph.D.s Among Us

I wrote a previous blog about Gabriel Sneh, the Harvard Medical School student who rented space in our office to study for his board exam.  With exemplary grades and only four errors on his exam, he was courted by every top neurosurgery residency program in the country, and he was ecstatic on being matched with his number one choice.  His journey continues; seven more years to reach his final goal.

I was honored to have attended his graduation ceremony this past May.  It was a picture-perfect day.  The graduates were the best and the brightest in the nation.  Many received not only their medical degrees that day but advanced degrees, Ph.D.s, in different scientific disciplines.  So impressive!

The brainpower under that graduation tent was mind-blowing.  I was feeling very inferior to say the least.  But then it hit me.  No one here can do what I can do on my steno machine, not the brilliant graduates, not the esteemed faculty, not the distinguished speakers.  I sat a little straighter in my chair after this epiphany, knowing that my accomplishments had merit too, that my profession’s contributions to society are just as vital, noble, and far-reaching.

Harvard may have their Ph.D.s, but so do we.  Those reporters who hold an RDR are in the minority among us.  Perhaps we work alongside them, fellow colleagues with the highest credentials who are always called upon when the toughest of challenges present themselves.  Maybe we’ve met them at conventions and have seen them in action at the national speed contests, or maybe we’ve attended informative seminars or read articles where they have graciously shared their knowledge on technology or the high-profile daily copy cases they’ve covered while traveling the globe. We look up to them with admiration and respect.

From my vantage point I’ve seen firsthand what these exceptional professionals can do, and it never ceases to amaze me what they are capable of.  Armed with proven speed and accuracy, the latest technology, and true grit, they report the most grueling of assignments and continue learning and growing from every experience.  They not only report the “usual” – depositions, hearings, trials – but they report the seemingly impossible:  providing CART on overhead projectors in convention centers with thousands in attendance, protracted roundtable discussions between academics from around the world, confidential interviews of eminent scientists describing the most obscure minutiae of their research.  Rush delivery, realtime, rough draft?  They don’t say it’s easy, but they manage to get the job done.

All of us owe them a debt of gratitude for their ongoing pursuit of reporting excellence and their eagerness to be trailblazers in an ever-changing, technology-based profession.  They make our community stronger and our value indisputable.  May their great example inspire you as you continue your studies, and may you one day join their ranks as a top-tier court reporter.  We need you now more than ever.

ON THE RECORD / OFF THE RECORD

When you’re at a deposition and one lawyer is yelling “off the record” while opposing counsel is yelling “on the record,” what should you do?   In many cases the attorney who hired the reporter will argue that it is his deposition, that he hired us, and therefore he would determine when to go on and off the record.  The other attorney will disagree.  But no matter how loud their instructions to you are — “go off,” “stay on” — don’t let them intimidate you.

NCRA’s COPE Advisory Opinion No. 6 emphatically states that the reporter should stay on the record until both sides agree to go off.  As neutral parties, court reporters must not favor any side.  As long as one party wishes to speak, you must keep writing to preserve their position despite objection from the other side.  The same holds true regarding recording testimony:   If one party wishes to ask questions of a witness, you must keep writing.  If you are ever in doubt, keep writing.  You cannot recreate what transpired, but you can sort it all out later after you have a minute to think.  You need to safeguard the record for a judge to review at a later date.

There will be times during heated exchanges where an attorney might assume something is on the record or vice versa when the opposite is true.  As a reporter, please be aware that there could be ramifications on your end if arguments arise about whether something was on or off the record.  You do not want to be caught in the middle of a tangled mess, and you do not want to be accused of any action or inaction that could affect the outcome of a case. 

In situations like these, you have to more forcibly take matters into your own hands.  When both sides agree, you can announce “We are off the record” so as to take any guesswork out of the equation.  You can even put your statement on the record in colloquy.  This is exactly what one reporter recently did during a very contentious deposition after it was decided to take a break.  Then as the lawyers were leaving the room, one lawyer called the other lawyer a “scumbag.”  The aggrieved lawyer said, “That’s on the record!”  Unfortunately for him, however, the remark was not recorded.  The reporter’s proactive measure saved him from being put in a sticky position.  There was no room for argument.

As a reporter, do not hesitate to take charge when situations like these occur.  As an impartial guardian of the record, you must maintain its integrity.  To protect yourself, it would be a prudent practice to announce when you are going off the record and on the record, especially when the parties are not getting along.

Check out NCRA’s COPE Advisory Opinion No. 6 on this matter.  You may want to keep it handy for future reference in case an attorney questions your position on this issue.

Swearing in a Witness – Treat this task with the respect and deference it deserves.

One of the most important duties a court reporter performs is swearing in a witness.  In Massachusetts, the notary laws state that a witness’s identity must first be verified by their presentation of a government-issued photo ID, such as a license or passport.  They also require that the witness be physically present with the court reporter.

When swearing in a witness, speak slowly and clearly.  Administering an oath sets the tone for the deposition.  An attorney told me once that a reporter rattled off the oath so quickly that he was compelled to ask her, “Do you want me to ask the questions that fast?”  Good point.  An oath administered slowly and deliberately will remind the witness of the seriousness of the occasion and will hopefully help to set the pace of the proceedings.

I have never forgotten this valuable piece of advice I once received on this topic:  Make sure you get an audible response from the witness.  If you receive a nod or a shake of the head, ask for a verbal response.  If you receive any other kind of response other than a “yes,” such as, “I’ll do my best” or “I guess so,” write those exact words on your machine.  In any event, after you swear in a witness, DorisWongCourtReportersmake a note to that effect somewhere, either on your machine or on your work papers, so that you can look a judge in the eye and affirm that the oath was indeed administered.

Almost every reporter at least once in their career forgets to swear in a witness.  If this happens to you during the deposition, you must alert counsel.  They will then probably ask you to administer the oath retroactively.  If you discover your omission after the deposition has concluded, then you must make that very awkward phone call to the attorneys to notify them of your oversight.  You can only hope the matter will be resolved without contention.  This is why getting in the habit of making a note that you DID swear in the witness is a good practice to follow.

I have come across several situations that gave me pause.  Be prepared with an oath to administer to a child and an oath to administer to an interpreter.  Some people would rather “affirm” than “swear” to tell the truth.  Some do not want a reference to God in the oath.  And believe it or not, before you ask someone to raise their right hand, make sure they have one!  (This actually happened)

In short, don’t be one of those reporters who indifferently spews out the oath.  Treat this task with the respect and deference it deserves.