I regularly communicate with attorneys and other stakeholders in the legal community about gripes within the profession and the subject matter of this column. Sometimes, people who reach out to me suggest that I write articles on given topics to bring light to issues faced by some members of the legal industry. After four years of writing this column, the well of article ideas has run a little dry, so I appreciate it when people reach out with such ideas! Over the past few months, a few court reporters have asked me to write about the trend in some parts of the legal profession to replace court reporters with merely recording hearings in certain contexts. After some research, it appears as if this is done more and more in certain situations, but legal professionals should be careful when trying to substitute the function of a court reporter with recording testimony.
Perhaps the biggest reason why legal professionals should not simply record testimony in some contexts is the threat of a technological breakdown. When a court reporter is at a deposition or other hearing, they can ensure that testimony is properly recorded. If there is a question about what was said, the court reporter can ask questions in real time to clarify the record and ensure that an accurate depiction of the proceeding is created.
When legal professionals rely on recordings, there is a possibility that technology will prevent a record of being made of certain proceedings. For instance, digital recording devices may not be able to pick up what is being said by all parties to a proceeding, especially if the hearing is occurring in a courtroom, and people are speaking from different locations within the venue. In addition, it is possible that people may fail to engage the digital recording system and not know until it is too late that critical portions of a hearing are not being properly documented. Depending on the importance of the hearing, this can have devastating consequences for a case and a given litigant’s rights.
Another reason why recordings cannot replace court reporters is because court reporters typically need to make professional opinions in a matter that a machine is incapable of making. For instance, court reporters need to determine in real time what is being said and by whom a statement was made. This can save time later on when people fight about what was actually said during a hearing because a court reporter made a decision about a matter at the point when the best judgment could be made about what was said. In addition, court reporters also usually need to decide if a comment was made on or off the record, subject to a set of rules of course. This may be contentious later on, and it is important that a court reporter made a decision about such matters contemporaneously.
Moreover, court reporters create records that are more easily reviewed and digestible by legal professionals than recordings alone. After a deposition or another kind of hearing, a court reporter creates a written transcript of what occurred. If is much easier and less time-intensive to review a transcript than to listen to the entire recording of a hearing to ascertain what was said. Moreover, written transcripts are critical to deciding motions when parties need to attach the transcripts from court reporters to their papers. From my research, it appears that if a matter is recorded, a professional still needs to reduce the recording to a written form in a number of contexts, such as for appeals, so the testimony can be preserved in a digestible form. It’s possible that the written record of a hearing taken after it occurred and based on a recording will be worse than if a court reporter was at the hearing contemporaneously producing a written record.
In addition, court reporters are important to facilitating a hearing, especially if a hearing takes place without the involvement of court officials. For instance, court reporters usually swear in a witness, oversee the introduction of exhibits, record who attended a proceeding, and conduct other functions. A digital recording alone cannot substitute for all of these functions. Moreover, litigation is often an extremely adversarial process, and it is important to have a neutral person overseeing a proceeding. A digital recording is no substitute for the neutrality and legitimacy that is inferred when a court report is involved in recording the testimony of witnesses.
All told, with technological advances and the advent of more accurate transcription software, there may be a push away from using court reporters in favor of merely recording hearings. However, court reporters serve a valuable function in the legal industry that cannot be substituted with any kind of technology.
Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at firstname.lastname@example.org.