| Oregon State Bar Bulletin — MAY 2007 |
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Red Flags in Court Reporter Ethics
By Robin Nodland
It would be easy to assume that, because they are impartial officers of the court who simply record other people’s arguments, court reporters are free from complex ethical considerations.
It would also be a mistake.
The issues that surround court reporting ethics impact much more than the quiet stenographer sitting demurely on the sidelines. Court reporters have a far more active role in your case than might be readily apparent, controlling not only how accurately your transcript reflects what transpired but also how quickly and thoroughly you are able to prepare your evidence based on that transcript.
"Attorneys want to make a strong case," says Dianne Cromwell, longtime court reporter and owner of the Boise-based firm Tucker and Associates. "If there’s a question about whether the court reporter has an interest in one side, that could be an issue before the judge."
The National Court Reporters’ Association (NCRA) has compiled a list of 10 basic guidelines to help ensure reporter impartiality and fairness. This Code of Professional Ethics sets out the standards of behavior that citizens, attorneys and judges have a right to expect from a member of the organization.
"Court reporters are supposed to be impartial, just like a judge," Cromwell says. "Our code of ethics is in alignment with the canons the judges abide by."
Appropriately, first on the list is a commitment to impartiality. It specifically details that all parties in a case should be offered the same services. While this means that a court reporter can’t offer a copy of the video to you but not to opposing counsel, it also means that you should never receive your deposition transcript a mere day before a big hearing, unaware that the other party got his or her copy a week ago.
This is one reason that trial presentation services are a subject of some contention in the court reporting community. In addition to regular deposition services, some firms offer to assist one side in preparing their case, doing much of the work preparing documents and technology to make for stronger presentation.
NCRA’s position is that it is permissible for a court reporting firm owner to also run a trial presentation service, even in the same case, so long as the two businesses are run separately and so long as all parties are informed of the firm’s involvement with one side.
James DeCrescenzo Reporting has been in business in Philadelphia for 24 years, and three years ago, DeCrescenzo decided to move into the trial technologies field.
"It just seemed like a natural progression from court reporting," he says. "Our clients started to ask us to help them with projects preparing for the courtroom, and I saw an opportunity there."
Now, three years later, both businesses are flourishing, and DeCrescenzo — a member of NCRA and other professional organizations — continues to focus on handling them "the right way."
"Court reporters ethically are obligated to be totally neutral, and in trial presentation, you are obligated to be advocates for one side. There’s a contradiction there, a cross-purpose," he says.
To handle that contradiction, DeCrescenzo keeps his businesses stringently separated, with not only different names, but also different employees; even the advertising literature has been designed to have completely different looks and feels to avoid the possibility of confusion.
The two businesses share many overlapping clients, and DeCrescenzo is careful to be as aboveboard as possible. For example, one day, a trial technologies employee came back from a day in court with a shared client and reported that opposing counsel was also a court reporting client. DeCrescenzo quickly wrote a letter assuring the client that the neutrality of his court reporter would never be an issue.
"He had no problem with it," DeCrescenzo says.
But not everyone is as scrupulously careful as DeCrescenzo, and some court reporters feel that the idea that you could walk into court and see someone from your reporting agency sitting at opposing counsel’s table violates the whole idea of neutrality and compromises the record, if not in fact then at least in appearance.
Linda Farmer and her partners have run Farmer Arsenault Brock out of Boston since 2000, and they have consciously chosen not to expand into trial preparation.
"I realize there are a lot of people who do it, and it’s a matter of a difference of opinion," she says, "but we would have a problem with it."
She says that it is a reporter’s job to be an officer of the court — generally, the reporter is the only neutral person in the room.
"But when it comes to trial presentation," she says, "you’re working for one side, and it’s hard to see how you would get around the bias issue without constructing some sort of Chinese wall within the business."
The appearance of bias is also the reason some reporters abstain from contracting, a practice common in the court reporting community and in the general marketplace. Many reporters offer discounted and expedited services in exchange for being added to "approved vendor" lists for law firms and parties such as insurance companies.
It is, many reporters have pointed out, a perfectly acceptable system in the free economy, and one well-suited to the fairly inelastic legal market.
Despite the practice’s prevalence and legality, however, there are some who object to the idea that court reporting should be run in the same way as any other business.
In 1997, after a heated discussion known as "The Great Debate," the NCRA board of directors resolved to lobby against contracting, expressing concern that treating the court reporter’s role as a commodity in this way compromises the integrity of the profession.
The next year, the American Judges Association passed a resolution to support anti-contracting legislation, stating that "court reporters are officers of the court whose impartiality, as with judges, must remain utterly beyond question."
To eliminate the appearance of preferential treatment, NCRA includes a gift-giving limit; the value of the gifts given by a court reporter to each client cannot exceed $100 per year — not because he or she doesn’t think you are worth it, but because it is prohibited in order to maintain the integrity of the profession.
Judith Torch has owned Malibu Court Reporters in Los Angeles for 40 years, and in that time she has seen great changes in the way reporters approach their jobs.
"I’ve seen this profession turn into a business," she says.
She recalls an incident 10 years ago in which a reporting firm in the Beverley Hills area offered gifts redeemable with transcript pages ordered — gifts ranging from hour-long massages to limousine rides and custom-made suits.
"It was shocking," she says. "It was so over the top."
Torch notes that the proverbial scales in the justice system are supposed to be balanced, and if a court reporter is willing to give one side preferential treatment through large gifts, there is a definite imbalance. And, she points out, any attorney who is being courted with such gifts has much to think about.
"If there is a breach of ethics and one side gets more than the other now," she says, "what’s to stop it from swinging the other way?"
The guidelines for Certified Shorthand Reporters (CSRs) in Oregon are even stricter. According to Oregon statutes, an Oregon CSR should never offer a gift or incentive valued at more than $50; that is, if your court reporter is throwing opera tickets around or wining and dining you at El Gaucho, something is amiss. Either said court reporter is not a CSR, or he or she is not abiding by the rules.
Not every court reporter is a CSR, and not every CSR is a member of NCRA. While all court reporters are bound by certain laws, not all choose to be bound by these ethical guidelines; the rules may be mandatory within the certifications, but the certifications themselves are not.
Hiring CSRs who are also NCRA members is an important way to ensure that your court reporter is being held to high ethical standards. You can request a CSR at the time you schedule your deposition, and then take a look at the certification page when you get your transcript to confirm; if your reporter was a CSR, it will say so on the stamp next to the signature.
There are a number of other ways you can take control as well:
Ask for itemized invoices, if you don’t receive them already. Reporters are required to provide them under ORS 45.138(2)(b). It’s too easy for a lump-sum bill to cover up extra charges.
If your CSR is contracted to another party in the case, make sure you are getting the same rates. Oregon’s statutes allow for reporter contracting, but they also require that the existence of the contract be disclosed, and that all parties receive their transcripts at the same time and be charged the same rates, original and copy fees notwithstanding (ORS 45.138(2)).
When you have a deposition taking place in Washington, verify that your court reporter is a Washington notary. Oregon CSRs have the power to swear in witnesses, but in Washington, only notaries can perform that function — and if it comes to light after the fact that your witness was not legally sworn in, opposing counsel may challenge the authenticity of the transcript.
Because this column can only hit highlights, consider reading the Oregon Revised Statutes regarding court reporters to familiarize yourself with all the rules your reporter should be following. They are available on the OCRA website at www.orcra.org/legislative.htm.
Because both NCRA and the CSR Code of Conduct specify that reporters must avoid both the fact and the appearance of impropriety, if you feel that something is wrong, that means that something most likely is. If it walks like a red flag and quacks like a red flag, it probably shouldn’t be happening in the first place, and with a clear understanding of court reporting ethics, you have the ability to hold your reporter accountable.
ABOUT THE AUTHOR
Robin Nodland is a founder of Portland’s LNS Court Reporting and a certified shorthand reporter (Oregon and Washington), registered diplomate reporter, and registered realtime reporter. Her professional affiliations include the National Court Reporters Association, the Oregon Court Reporters Association, the Society for the Technological Ad vancement of Reporting and DepoSpan.
© 2007 Robin Nodland