Court reporters and the new front in the war over electronic recording

A record of court proceedings is an essential component of our justice system. Without an audio or video recording or word-for-word transcript, the facts of what happened in court may be disputed, which could ultimately jeopardize a party’s chance for an appeal.

But in California, court hearings are regularly held without a verbatim or near-verbatim record ever being created. Some legal advocates say that’s a violation of basic constitutional protections and blame an unusual state law for the problem.

In early December, a pair of legal organizations filed a petition urging the California Supreme Court to order the electronic recording of certain hearings if the court system is unable to provide a court reporter and the parties involved cannot afford a private one.

“This is a huge access-to-justice crisis,” said Jennafer Wagner, director of programs at the Family Violence Appellate Project, or FVAP, which filed the petition with Bay Area Legal Aid.

FVAP and Bay Area Legal Aid attribute the crisis to a shortage of court reporters in the state as well as a part of the Government Code, Section 69957, which limits the kind of cases that can be audio recorded using electronic devices.

California law requires that court reporters be present for the most serious legal matters, like felony trials and dependency hearings. Every day that court hearings are held in the state, cases like that get first dibs on court reporters provided by the court system.

Meanwhile, Section 69957 permits some specific, minor matters – limited civil and misdemeanor or infraction cases – to be electronically recorded.

However, there exist a wide range of cases in the middle that are not allowed to be electronically recorded, but also might not be able to secure a court reporter from the system due to demand for them in higher-prioritized hearings. These cases, involving unlimited civil, family and probate proceedings, are perhaps the most deeply affected by the state’s so-called shortage of court reporters.

The number of California-licensed court reporters dropped 19 percent from fiscal year 2013-14 to fiscal year 2021-22, according to state Department of Consumer Affairs data cited online by the state Judicial Council. As of mid-December, there were 5,584 active, licensed court reporters in California, according to Consumer Affairs statistics. In the Budget Act of 2024, the Legislature appropriated an extra $30 million to the superior courts to recruit and retain court reporters. (EDITOR’S NOTE: According to numbers obtained directly from the Department of Consumer Affairs, the actual number was 21 percent.)

For cases that fall in the middle, private court reporters are available when court-provided ones aren’t, but they may be cost prohibitive for lower-income residents. A court reporter hired through a private company costs, on average, $3,300 per day for a trial, or $2,580 per day for a deposition, according to the Judicial Council.

For cases that fall in the middle, private court reporters are available when court-provided ones aren’t, but they may be cost prohibitive for lower-income residents.

Lower-income residents who obtain a fee waiver also can, in theory, secure a free-of-charge court reporter through the legal system in California – but that’s only if one is available on a given day. FVAP and Bay Area Legal Aid insist a shortage of court reporters combined with the demand for court reporters in prioritized cases means that there often just aren’t enough court reporters to go around. In fact, numbers cited by the Judicial Council show that in the 10 months from October 2023 to August 2024, an estimated 1,013,924 unlimited civil, family law and probate hearings were held without a verbatim record being created.

If you eliminate the holidays and weekends during that period, that averages out to about 4,427 hearings per day held without a verbatim record made, according to a Capitol Weekly analysis – although, to be fair, the Judicial Council numbers offer little context for the hearings and no comparison to what it was like during other periods of time.

Still, Wagner of FVAP said other states and the federal court system don’t have this problem because they allow electronic recording in a wider range of cases than California, which makes access to a record much easier and more affordable for everyone involved.

FVAP and Bay Area Legal Aid argue that California’s system deprives residents of their rights to due process and equal protection by making access to a record often a function of one’s income.

“This is irreparable harm,” Wagner said.

Supply and demand
The organizations representing court reporters in California, including the California Court Reporters Association and the Deposition Reporters Association of California, agree that failing to produce verbatim records of court hearings is a problem. But they don’t think the solution is investing in more electronic recording technology. They think it’s in shoring up the state’s supply of court reporters, which became a problem only after the Great Recession, when court reporters were laid off.

In a September letter urging Gov. Gavin Newsom to sign AB 3252 to extend the operations of the Court Reporters Board of California, which the governor eventually signed, the deposition reporters association bemoaned the lack investment in the profession of court reporting.

President Stephanie Leslie wrote that none of the most powerful stakeholders in California’s judiciary, not the Judicial Council nor the State Bar of California, “not the trustees of any of the public institutions of higher learning, not the trade associations of lawyers,” have “taken a single step toward expanding the number of court reporters in California.”

Leslie said the state should be doing much more to encourage community colleges in California to offer court reporting training. As it is, she said only eight programs exist in the state, but their enrollment “is skyrocketing, with some programs being forced to place aspiring reporting students on waiting lists.” She also noted that students are passing “the court reporting exam in record and ever-increasing numbers.”

“Think of how many more reporters we could have right now if, as a state, we took any concerted action to seize upon these already-existing trends,” Leslie wrote.

Research by the deposition association also found that it’s not uncommon for opposing counsel on a case to book two separate freelance court reporters for the same hearing or trial, compounding the shortage of available court reporters. A memo written on the subject by the association is entitled, “Requiring lawyers simply to talk to one another before hiring court reporters to appear in court will result in an immediate, double percentage point increase in the number of reporters available for work in court each day throughout the state.”

Also in the last legislative session, FVAP co-sponsored SB 662 by Sen. Susan Rubio (D-Baldwin Park) to allow courts to electronically record any civil case. The bill was supported by the Judicial Council, placing the administrators of the state’s court system directly at odds with California court reporters.

The bill died on suspense in the Senate Appropriations Committee in May 2023. Notably, the committee analysis offered contradictory takes on the state’s supply of court reporters. It reported that the head of the court reporters licensing board believes the state has “a sufficient number of licensed court reporters to meet the demand for court reporters.” It also said that the Judicial Council reported “a 20 percent vacancy rate statewide for court reporter positions, 10 percent higher than the prior year.” The analysis added that more electronic recording would result in both “one-time and ongoing costs, possibly in the millions or tens to millions” of dollars.

California court reporters oppose expanding the use of electronic recording, saying the technology doesn’t provide as good of service as they do and will be obsolete from the moment it’s purchased. They also point to California’ courts poor track record of tech procurement as a reason why the state should rely on people instead of technology.

To experienced (or jaded) members of the Capitol community, court reporters may look like they’re just trying to protect their jobs in the face of technological advancement (and opposition from not only legal advocates, but also the very leaders of the California judiciary). But Michelle Castro, the retired director of government relations for SEIU, whose affiliates include local unions representing court reporters, suggested their opposition is just founded in good policy.

“Certified court reporters are essential in providing equal access to justice,” Castro said in an email to Capitol Weekly. “They are obligated to take a verbatim record and, unlike faceless electronic recording devices, they can be held accountable if the record they provide is incorrect. The state Legislature has repeatedly shown it understands the value of court reporters as well. It has approved funds specifically for the recruitment, hiring and retention of court reporters. Lawmakers have passed legislation aimed at expanding the pool of certified reporters and has repeatedly rejected attempts to expand the use of electronic recordings. Those legislative efforts are paying off with the number of new court reporter licensees growing by over 250 percent in just two years. Courts have the funds, the pool of candidates and the mandate from the Legislature to hire more court reporters. It’s time they stop stalling and take the proper actions.”

Castro also noted that electronic recorders cannot, technically, produce verbatim records of court hearings because there may be parts of the recording that are inaudible or unintelligible. Only court reporters present for a hearing, she said, can prevent those blank spots from cropping up, illustrating that court reporters are not just secretaries who take dictation. They actively manage the creation of the record in real time to ensure accuracy and completeness.

Also, any audio or video recording of a court hearing must first be transcribed by a licensed court reporter to be used in an appeal or subsequent proceeding. So, even if electronic recordings are expanded, court reporters will still be needed.

Pending decision
The Supreme Court has not yet ruled on whether it will actually hear the petition. But the proposal has already received several letters of support, including from the ACLU, the Center for Judicial Excellence and the California Lawyers Association.

The association’s letter includes some real-life examples of what happens when verbatim recordings are not made of court hearings. It describes a trust case involving a disabled, elderly client and a two-week trial. The letter says, “The court did not provide a court reporter, and the client could not afford a private one. The client lost the case and might have appealed, but the lack of a reporter’s transcript made it practically impossible to do so.”

The letter also paraphrases an attorney who says that “(i)n a significant percentage of consultations” appeals aren’t pursued because of a lack of verbatim records, “particularly in fact-intensive areas such as domestic violence restraining orders and child custody, where review is impossible without a verbatim record.”

“No access to a recording is no access to justice,” said Betty Williams, president of the California Lawyers Association.

SEIU also has submitted a letter, in opposition, writing that the petition would absolve courts “of any obligation to spend public funds on court reporters or court reporters pro tempore to provide a verbatim record of civil proceedings for low-income litigants and” instead pay for electronic recording.

The SEIU letter hints at how the petition could, potentially, drive state funds away from the court reporting industry. But the union insists that the outlook for the profession is not as grim as it’s been made out to be.

Citing different statistics than the Judicial Council, SEIU wrote that, “The annual number of licenses issued by the Court Reporters Board increased by 350 percent between fiscal year 2021–2022 and fiscal year 2023–2024.”

The union letter may be most noteworthy, however, for another reason: its specific legal arguments for why the Supreme Court is the wrong venue to hear the petition.

SEIU argues that the issues raised in the petition are presented as “pure questions of law” when the union asserts that the facts have not yet been determined. SEIU argues it’s not a given that the courts cannot provide verbatim recording to low-income residents within the state’s current statutory framework or that there is nothing more that the courts can do to provide court reporters in the current environment.

“The truth of the factual assertions underlying the petition should be determined through normal litigation that includes discovery and fact finding,” SEIU wrote. “The superior courts are also better positioned than this Court to craft remedies that may depend on the underlying facts.”

The letter also notes, “the ongoing involvement of the Chief Justice and Judicial Council in advocating for the expansion of electronic recording weighs against giving special treatment to this petition.”

The Supreme Court could consider whether it will hear the petition as soon as early this month.