Managing Your Practice

Knowing the Boundaries

Court reporters and lawyers

The 1999 Oregon Legislative Assembly passed a series of laws regulating the reporting of deposition and arbitration testimony, laws that can affect the conduct of the lawyers and the admissibility of the testimony in the case. With the benefit now of a couple of years of experience, a short recap of these provisions, their consequences and some unanswered questions that they raise may prove useful for lawyers and court reporters in maintaining proper relationships and following the law.
The relevant provisions are ORS 45.132 to ORS 45.142 and ORS 45.900, which define the scope of covered testimony; limit who may report the testimony and prescribe the duties of the reporter; regulate contractual relationships between court reporters and lawyers or parties; and provide potentially significant sanctions for noncompliance. The laws cover the taking of all testimony in discovery and perpetuation, as well as all testimony in an arbitration proceeding. ORS 45.132. For convenience, I will refer to this collectively as deposition testimony.

Although the law does not purport to state who may report deposition testimony, it provides a fairly clear list of those who may not do so. ORS 45.135(1). The prohibited class includes parties and their lawyers, their employees and people with a financial interest in the outcome of the action. It includes relatives of the parties and of those with a financial interest. The law, however, is less clear about relatives of lawyers (such as a court reporter who is married or related to a lawyer in the firm), particularly if the lawyer's fee is based on the outcome.

The list of prohibited persons is absolute; even inadvertence or the parties' consent is not contemplated as an option. And the sanctions for noncompliance likewise are clear: Testimony reported by an unauthorized person 'may not be introduced in evidence or used for any other purpose in a civil action,' ORS 45.135(2), and the reporter is subject to a fine up to $500. ORS 45.900.

The court reporter must provide accurate and equal services, disclose fee rates, charge equal fee rates and account for fees to all parties and lawyers in the proceeding. ORS 45.138(2). Fee rates can be and often are disclosed by itemizing the rates on a bill. Transcripts must be delivered at the same time to those entitled to receive a copy. Id. Because the focus of this provision is on the duties of the court reporter, violation of the provision can result in a fine to the court reporter but has no specified evidentiary consequence. I suspect, however, that if a party or attorney were to try to modify the transcript in some manner other than the approved form of correction, in violation of the provision that prohibits such modifications (ORS 45.138(1)), that a court-imposed evidentiary or other sanction against the party or attorney would be the obvious consequence.

Perhaps the most controversial provision is the one that regulates contractual relationships with court reporters. ORS 45.142(1) obliges the court reporter to disclose a contractual relationship with a party, lawyer or person with a financial interest, before reporting a deposition. The law then provides a mechanism for any party to object and, if the parties cannot agree on a reporter, for the court upon a motion to appoint an independent reporter. ORS 45.142(2).

The scope of this provision is important, and it is not entirely clear. For example, the statute provides little guidance with respect to the increasingly common situation of court reporters who are independent contractors utilized by a court reporting firm, where the firm may have an ongoing relationship with a lawyer but the independent contractor may not.

We do know that the contractual-disclosure provision does not apply to people who report for a public body. ORS 45.142(5). In addition -- and by contrast to the fee disclosure and equal-rate provisions that apply to all proceedings -- the contractual-disclosure provision does not apply to contracts for 'a single deposition, case or incident.' ORS 45.142(4). It does, however, cover a 'person [who] has a contract to provide reporting services for depositions on a full-time or part-time basis.' ORS 45.142(1).

A comparison of the exclusions and inclusions leads me to conclude that a lawyer or law firm and a court reporter or court reporter firm who have an ongoing relationship that may rise to the level of a contractual agreement should err on the side of caution and simply disclose that relationship. That certainly is in keeping with the spirit of the provision, which is not to prohibit such relationships but merely to require their disclosure in the interests of fairness to all of the parties.

Disclosure also will keep the lawyer on the right side of the lawyer's ethical obligation not to engage in conduct prejudicial to the administration of justice, DR 1-102(A)(4). Indeed, even though the law places the disclosure obligation on the court reporter and provides no explicit sanction for noncompliance by anyone, if the lawyer is aware of a covered relationship, the lawyer should be sure that it has been disclosed to the other parties. To do otherwise runs the risk of being a party to conduct that is unlawful, deceitful and prejudicial to the administration of justice.

My own perspective on the law is that its disclosure and equal treatment provisions are admirable and workable. The provisions for sanctions, or the omission of such provisions, however, seem ill-conceived. It makes little sense to treat violations by court reporters as a 'violation' subject to a fine, because the statutory provisions for a 'violation' basically appear to treat it as a low-level quasi-criminal proceeding that must be initiated by the local prosecuting attorney. That is a threat without any practical substance. By contrast, there is no explicit provision for sanctions that may be administered by the court or arbitrator with jurisdiction over the pending proceeding, other than the unnecessarily draconian automatic prohibition on use of testimony that was reported by someone who is ineligible, regardless of the circumstances or the accuracy of the transcript.

And so, with awareness will come compliance. And then there will be nothing to write about.