COMMENTARY: Who's whose and other quirks of court reporting

By Amy Shankleton-Novess As an official certified electronic court reporter since 1979, and freelance business owner since 1988, I have had the privilege of serving the southeastern Michigan legal community for many, many years, both as a court employee and also as a freelance business owner. I thought perhaps new attorneys and even more experienced ones might appreciate some of the observations of a seasoned court reporter/transcriber. As a digital reporter (CER), and not stenowriter (CSR or CSMR), I make the record via digital recording equipment, which is saved to a digital file. That recording is then processed through various proprietary transcription software and transcribed manually into a Word document. Using the digital technology, we can listen to the speakers repeatedly in order to transcribe an accurate record. We listen to the speakers with utmost concentration and hope for clear and audible recordings. When our own firm's people record the proceeding, hearing, or deposition, we usually have control over the atmosphere so as to ensure there is no ambient noise which would interfere with our transcription. We watch to prevent that items are not placed onto our microphones and ensure that the speakers are using audible and clear verbiage. Our electronic court reporters take copious notes inserting into our log sheets any words, terms, proper nouns, dollar amounts and other various notations that will help the transcriber provide an accurate and verbatim transcript. We may note something phonetically as a spelling, which will have to be verified at some point. As court reporters, we often have to decide the proper spelling of words based on the context being used. We do not take that decision lightly. Situations of transcribing official court proceedings have significant challenges. Some courts of jurisdictions, specifically Washtenaw County, have certified electronic operators (or CEO's) who are tested and certified through State Court Administrator's Office, which is overseen by the Michigan Supreme Court. The CEO operates and monitors the recording equipment and takes various notations during a proceeding. We are grateful for the conscientiousness of these clerks who the courts have assigned to the judges. Their excellent work is fundamental to our ability to produce accurate and verbatim transcripts. In some jurisdictions throughout the state, though, the personnel who record are not certified and are sometimes newly and minimally trained in operating the equipment. Often we receive recordings that are very difficult to transcribe due to various reasons, perhaps fans, blowers or computer equipment is operating in or near the courtroom. We may hear lawnmowers, jackhammers or other construction equipment, even passing trains or semis in our headsets when transcribing. On many occasions, the topic of the proceeding is hotly contested and the speakers interpose over each other. We have to sort out the speakers' context, which may make a very disjointed transcript to read. Sometimes the clerk comes in and out of the courtroom not noticing equipment malfunction. We have had occasions where the presiding official may take the bench without the clerk present, and so there is no recording started or made, or it may be turned on mid-sentence during a speaker's argument. Oftentimes the attorneys will approach a witness or the court with exhibits to review. If they speak during the trip to the witness or the bench, we lose the voice as the speaker is out of microphone range. Your job as an attorney is not to have to assist in recording the proceedings, but it would behoove you to be aware of the surroundings and the record being created. Any court recorder will appreciate your assistance in making the most accurate and reliable record possible. With the new technologies available for making the record, old practices may need updating. For instance, in a court proceeding with a stenotypist, when attorneys approach for a bench conference it was assumed your conversations were off the record and not transcribed as the steno simply stops inputting notes. Nowadays the operator of the digital equipment may initiate the "white noise" function, which allows the words at the bench to be recorded audibly but the rest of the courtroom cannot hear the conversation (and it is horrible to try and transcribe while the white noise is on). Some judges will instruct their staff to leave the recording going during sidebar conferences and the conversation may be transcribed if audible. If the judge is operating the equipment him/herself it is at their discretion whether the conversation is recorded. It would be a good practice to inquire of the judge whether you are on the record or not during your sidebar discussions. A very necessary practice to ensure accurate and complete transcripts concerns multi-day proceedings. Continuations of proceedings are often transcribed by different people, especially in the case of daily or expedited copy. It is crucial to have the attorneys and/or parties place their appearances on the record at the beginning of each day and each case since we transcribe based on voice recognition. Not every court has the video function, which is not helpful for transcription anyway. Introducing a continuing witness at the beginning of a new day of proceedings will assist the transcriber and makes for a clear record, also, as will correct identification and spellings and the phase of their testimony: direct, cross-, redirect or recross- examination, voir dire, adverse/hostile witness, etc. Our most difficult transcripts to provide are sometimes closing statements in trials or even motions. We may have transcribed the entire trial without much ado and are confident we have typed a good record. Then we get to closing statements. The attorneys have spent perhaps weeks preparing closing statements for the judge or jury. If the attorney is out of range of the microphone, and I can't hear you I will be painfully required to insert a notation of "unintelligible," "indiscernible" or "inaudible." The jury and judge can hear your live closings and may render a favorable verdict, but as a seasoned attorney knows the court of appeals may have the final say on the outcome of a case. If we can't hear you, we can't type you. A good rule of thumb is for a speaker to be facing the microphone and no more than arms'-length away from it. We would caution attorneys to please not place your notebooks, pleadings, and exhibits, nor rustle papers on or near our microphones, which can muffle your words and even obliterate what you're saying. Bad cold or allergy day? Please bring some lozenges so you're not coughing over the record. But absolutely no gum chewing. By anyone. If you must type on your cellphone, I-pad or laptop computer, please distance yourself from the microphone as your blazing and clicking keystrokes can be heard through our headsets and may even overpower testimony. A great disservice to an accurate record is the use of contractions. Oftentimes in typing testimony it is very difficult to discern whether the witness is saying "did" or "didn't," "was" or "wasn't" and other very dissimilar contractions. Our being able to identify the correct usage can be critical to the outcome of your case. We know that sometimes it's easier to just say 130, for example, when referring to dollar amounts but are you meaning 130,000 or just 130? It's best to pronounce the entire figure. Are you saying 115 or 150? And meaning $115,000 or $150,000? Some figures may sound the same on the recording. From the audio, it's often very difficult to discern the differences in amounts but critical to the matter at hand. If you say 130, meaning $130,000, we will type the 130. We do not insert what we might think you mean. A good CEO or CER taking notes would make those clarifications on their logs but we don't always even have an operator in the courtroom monitoring the record. An experienced and proficient court reporter and transcriptionist will have a good handle of everyday English usage. Knowing the difference between the homonyms, the homophones, and other eccentricities of the English language is crucial to producing an accurate and verbatim transcript. A typical answer could be "I don't know." Is that as in "I have no knowledge" or "I don't, no"? Grammarcheck and spellcheck are useful tools for any transcriber but sometimes cannot always render the final say. Transcribing a court proceeding or deposition of a witness or party who utilizes an interpreter is a challenge of a whole new kind, which situation could be addressed another time. You as attorneys, and the general public, have a right to expect the best and most accurate transcripts possible and to be produced in a timely manner. You should expect to pay statutory rates for court transcripts. Michigan statute MCL 600.2137[3] sets the court rates we are allowed to charge for regular turnaround time excluding appeals it's usually considered 28 days at $1.75 per page and 30 cents for the copy. That boils down to $2.05 as we are required to file the original signed transcript with the court and the requesting party pays 30 cents for their copy, whether hard copy or PDF. Usually on appeals we also provide the copy to appellee(s) at the appellant's expense so usually it's $2.35 per page. The statutory rates for transcripts were last set by the Michigan Legislature in 1986. As much as we'd like to charge more, we are bound by the 32-year-old page rate, which makes it one of the lowest in the nation. The State Court Administrative Office (SCAO) has determined that freelance transcribers who are transcribing court proceedings are bound to the same statutory rates as stated for "officials". SCAO has granted exception to the statutory rate in that we are allowed to charge expedited fees if the requesting party requests the expedited service. Expedited fees are to be agreed upon and specified at the outset of the requested service. A deposit up to the full amount of the estimated cost of the transcript is usually required, plus shipping costs, for any transcript service. The "carved in stone" rates are applicable only to court generated transcripts, including Friend of the Court hearings. Transcripts from deposition testimony and other "freelance" work is determined per the freelance firm's schedule of rates. I am very fortunate to have an experienced and dedicated team of electronic reporters and transcribers with varying levels of training and education. My daughter Kristen has been with me now for almost 15 years as a CER, even while working on her master's degree from Eastern Michigan University. We thoroughly enjoy serving the local legal community and the public. We have heard just about everything, typed the horror stories, often the most bizarre situations, and have honed our ability to keep a poker face. We've recorded in prisons, gymnasiums, schools, hospitals, and even at the bottom of a gravel pit. Every day is a new adventure and challenge, and we love every minute of it. I hope my thoughts here are helpful in your practice of law and making the permanent record for your cases. Best wishes and all success in your law practices! -------- Amy Shankleton-Novess started as a judicial secretary/court recorder at 14th District Court in 1979. She's been certified continuously since then. She left her official reporter position with 22nd Circuit Court in Washtenaw County to establish Modern Court Reporting & Video LLC in 1988. Published: Fri, Oct 05, 2018