By Dennis Depew
As I write this column, there is a move afoot in the Kansas House to begin the process of eliminating court reporters in the courtrooms of Kansas. In times when there constantly seem to be more needs than money, proposals like this, which a few years ago would have been unthinkable, now seem to be gaining traction. The Kansas Supreme Court’s own Blue Ribbon Commission and its more recent Court Budget Advisory Council have both broached this topic as well in recent years as a potential cost savings idea.
I remember as a child going to court with my dad from time to time during the summer months when school was not in session. It was always fun and, at times, very entertaining. I got to meet all sorts of interesting people, including other lawyers, judges, law enforcement officers, court clerks, and a number of court reporters. I can remember Dad telling me how important it was to maintain a good relationship with all of those people, regardless of whether your case turned out like you and your client wanted it to, because it was those people that made the legal system work. Over the years, Dad and then my brother and I have continued those efforts to be friendly and to have not only a good relationship with but also to show the proper respect to everyone who is a part of the court system in both state and federal courts in which we appear.
I remember being especially enthralled with the court reporters. It was amazing to me how they could punch the buttons on that little machine and produce that long white paper tape that only they could read. Even more amazing was how they could translate that paper tape into a full blown transcript of everything that was said in court in just a matter of days if a transcript was needed for any reason. I was in awe of the magic powers of the court reporters.
Today, the equipment used by court reporters has gone high tech and paperless. While some reporters still use equipment that generates the paper tape, most have gone to the electronic paperless models that can be connected to a computer for transcription. Many reporters also use digital recorders to simultaneously voice record while they still push those buttons on their machines. Many courts have added electronic recording equipment as a backup for when real court reporters are not available. Some of that equipment is the latest digital type, but there are probably still some courtrooms around that use a magnetic tape system. For all court recording systems, everyone who speaks has to make sure they are near a microphone at all times.
Those who support the elimination of court reporters tout how much less expensive the electronic recording systems are and how good they are with modern digital technology. While the technology has certainly improved, it cannot and never will be able to fully replace the court reporter as far as I am concerned. Let me give a few examples:
1. I am in a hotly contested domestic trial. The witnesses are hostile toward each other, and the examination is tough. Spouse A is on the stand and engaged in a combative cross examination by spouse B’s attorney. There is a question, an objection, a witness response, and a ruling from the judge on the objection. Four people are talking at once. How is an electronic recording system possibly going to sort out who is saying what? With a court reporter present, he or she can bring the proceedings to a halt and take the time to clarify what each of the four people speaking at the same time said.
2. A hearing begins and continues until the morning break. As the court breaks, the judge notices that the high-tech digital recording system didn’t get turned on, didn’t have sufficient disc space to record everything, or didn’t work for some other reason. Both opening statements and the first several witnesses have not been recorded. Does the judge go back and restart the proceeding or just move on without the record? With a court reporter present, any electronic malfunction would have been noticed immediately and the proceedings stopped until the malfunction was corrected.
3. During a hearing, there is a question by counsel that has embedded in it about 3 or 4 different questions or is so long that by the end of the question the witness cannot remember what the question really is. The witness asks for the question to be repeated, and it was so long and convoluted that the attorney who asked cannot remember exactly what he or she asked. How does that work with a digital recording system? With a court reporter present, all the court has to do is simply ask that the question be read back. The same scenario can apply to an especially long and convoluted answer by a witness.
4. The court takes under advisement a ruling on a case that took two days to try. There are lots of conflicting numbers and testimony. Several weeks later, as the judge is working on the opinion, he or she decides that a partial transcript would be helpful. Someone has to find the recorded hearing on the hard drive, figure out what part the judge needs, then make arrangements for someone to come in and type that part of the hearing up for him or her. What a hassle! When the court’s regular reporter has transcribed the hearing, all the judge has to do is ask the reporter to type up the testimony of John Doe and that written information can be in hand within a short period of time. With that written record before the court, the resulting opinion can be accurate and based on exactly what took place.
5. A multiple-day trial takes place, and after a ruling an appeal is filed. When the request for transcript comes in, the digital recording is found and it is discovered that the defense counsel’s microphone was inoperable for some reason. How is an appellate court supposed to determine what took place if it has no record of what was said by defense counsel? There was recently a decision by the Kansas Supreme Court to order a new trial in a criminal case for the primary reason that a complete record was not made at the trial level. The court was not able to decide the case because there was not a sufficient record to do so.
All of the examples I have set out above have happened in Kansas. Some of these events occur on a daily basis in the courts of Kansas. We need court reporters to ensure the accurate and cost effective delivery of justice in Kansas. While I love modern technology and the ability to control my home theater from my iPad, I still have to decide what I want to hear or see and in what order. In court, modern technology can be a wonderful aid to the court and its participants. It will not, however, until there is significantly more advancement made, replace a real, live court reporter and the incredibly valuable service to justice that only a court reporter can provide.
Dennis D. Depew is an attorney with the Depew Law Firm in Neodesha. He currently serves as president of the Kansas Bar Association. He can be reached at firstname.lastname@example.org.
The article was originally published in the April 2014 issue of The Journal of the Kansas Bar Association, and is reprinted here with permission.